Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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DONNA CRAIG[*] AND MICHAEL DAVIS[**]
Indigenous peoples hold responsibility for, manage, and own resources and knowledge about plant and animal use, including methods of preparation, storage and management, which is of global economic significance. These peoples’ knowledge of biological and genetic resources already forms the basis for sizeable seed, pharmaceutical and natural product industries. Natural resource management, soil fertility maintenance, stream and coastal conservation and forest and agricultural system models provide viable, time-tested options for sustainable development adapted to microclimate variations and local socio-political ecosystems.
Yet Indigenous peoples confront increasing external pressures to provide information, contribute their knowledge and practices, and endorse developments involving their lands, territories, biological and genetic resources, and cultural products and performances. Even recognition of the contributions that Indigenous knowledge has made in the past to world food and medicinal sources, as well as Indigenous peoples’ current significant contributions to agriculture, water and forest management, has done little to offset these peoples’ political marginalisation.
The interests and concerns of Indigenous peoples often overlap with those of local communities in the developing world. However they are far from identical. Indigenous peoples typically comprise ‘nations within nations’, and those living in developing countries often suffer human rights abuses and political marginalisation from those countries’ governments. The degradation and expropriation of Indigenous lands and resources continues without adequate legal protection in the developed and developing worlds. International standard-setting activities have addressed these problems to some extent, but much more remains to be done. Some of the more useful standard setting instruments are the International Labour Organisation (ILO) Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1989, the Convention on Biological Diversity,1992 (CBD), the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, and the Draft United Nations Declaration on the Rights of Indigenous Peoples.
Although these are all significant developments, the Draft Declaration and ILO Convention 169 are currently the only instruments providing specifically for Indigenous peoples. Of these two, the Draft Declaration is a stronger document, but it is a long way from reaching consensus in the United Nations. Even when it does eventually reach the stage of being endorsed officially as a Declaration, this will not create the kind of binding obligations that a Convention would on member States.
The United Nations Convention on Biological Diversity is especially important for its provisions relating specifically to the protection of Indigenous rights and interests in biological and genetic resources, and the traditional knowledge and practices associated with these.
This paper argues that traditional ecological knowledge (TEK) relating to the conservation of biological diversity cannot be protected without international and national regimes that protect the human rights of the holders and owners of this knowledge, as well as their specific Indigenous integrated and comprehensive rights. The paper reviews a range of developments, existing and emerging, including both international and domestic, that provide, or have the potential to provide for Indigenous rights in traditional knowledge and biodiversity.
The task of protecting ‘intangible’ knowledge is especially challenging. Many of the current attempts at such protection are framed within contexts, legal regimes and policy developments concerning bioprospecting, access to genetic resources and benefit sharing, and intellectual property rights. Yet most, if not all these developments provide limited scope for recognising intangible knowledge.
As well as protecting TEK, the increasing interest in use of this knowledge also requires critical examination of ethical issues, and relevant legal and policy developments. There may eventually be financial profits resulting from products or processes that are based on TEK. However, although these ‘profits’ may be directly related to the access and use of TEK, in reality they are often far removed from Indigenous peoples, and have more to do with the structures and processes of corporations in a globalised economy. Another mechanism potentially available to Indigenous peoples as a means to derive monetary returns from, or to protect their TEK is the existing intellectual property rights regime. However, this is a limited option in the context of TEK, as discussed below.
Given the lack of capacity within conventional intellectual property rights regimes to protect TEK, it is useful to explore more productive avenues. The Convention on Biological Diversity (CBD) presents the potential for such opportunities. The Secretariat of the CBD has in recent years developed an important body of work to advance the implementation of provisions concerning Indigenous peoples. The CBD working groups on Article 8(j) and related provisions and on access and benefit-sharing are the key developments in this regard. The development of standards and guidelines for access to biological and genetic resources, especially with regard to benefit sharing and prior informed consent are particularly important. The introduction of the Bonn Guidelines has been an important step to evolve more appropriate regimes for Indigenous peoples.[1]
There have also been some worthwhile developments at regional and national levels. Examples include the Andean Pact Decision 391 – Common Regime on Access to Genetic Resources 1996, and national laws in a few developing, biodiversity rich countries such as Costa Rica that have attempted to recognise the distinct nature and values of TEK. Costa Rica’s 1998 Biodiversity Law recognises and protects what it terms ‘sui generis community intellectual rights’, comprising the ‘knowledge, practices and innovations of Indigenous peoples and communities, related to the use of components of biodiversity and associated knowledge’.[2] Other useful regional developments are the Organisation of African Unity (OAU) Model Law, and the Pacific Model Law.
The OAU produced in 2000 the African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources. This Model Legislation provides a relatively comprehensive scheme for ensuring conservation and sustainable use of biological resources. Its objectives (Part I) include:
The OAU law has been described by Indigenous expert Henrietta Fourmile as offering ‘perhaps the most powerful and comprehensive protection for TEK and the natural resource rights of Indigenous peoples formulated to date’.[3] Fourmile also states that this legislation ‘provides a clear, concise and plain language model that can be used by Indigenous peoples in Australia … to secure appropriate levels of protection for our TEK and traditional natural resources’.[4]
What is of particular note in the OAU is its provisions that recognise the ‘community rights’ of local communities – defined as ‘those rights held by local communities over their biological resources or parts or derivatives thereof, and over their practices, innovations, knowledge and technologies’ (Part II). The OAU Model Law sets out comprehensive provisions[5] providing for these community rights, including requirements for prior informed consent, the right to refuse consent and access, the right to traditional access, use and exchange, the right to benefit, and the recognition of ‘community intellectual rights’.
The Pacific region Model Law for the Protection of Traditional Ecological Knowledge, Innovations and Practices is an innovative development (yet to be finalised and agreed), that offers useful guidance for introducing measures for protecting intangible knowledge. This Model defines ‘traditional ecological knowledge’ as follows:
Generations-old knowledge whether embodied in tangible form or not, gained over generations of living in close contact with nature regarding:
This Model Law contains provisions for ownership of ‘traditional ecological knowledge, innovations and practices’ by ‘a group or an individual’, and that reaffirm ownership rights in TEK as ‘inalienable and non-transferable’.[6] Importantly, the Law states that such an ownership right is ‘in addition to any other rights available under existing intellectual property laws’.[7] The Model Law also provides for prior informed consent to be sought if the wider use, or commercialisation of traditional ecological knowledge is proposed.[8]
The current debate about protection of TEK proceeds from very diverse perspectives and largely revolves around exploring the few legal ‘niches’ available to Indigenous peoples. Perhaps the most potentially useful of these is the CBD, but conventional intellectual property rights laws may also be considered. These legal mechanisms may provide opportunities not only for protection, but importantly also for equitable benefit-sharing, and the prospect of providing economic returns to Indigenous people. Where TEK and associated practices are utilised by the wider society, there is the potential for infrequent ‘discoveries’ to be made that may have a very high economic value, and ultimately return real benefits to Indigenous people. In the context of the CBD, the protection of TEK and associated practices contributes to the sustainable use, protection and management of biological diversity. In principle then, protection of TEK can contribute to the implementation of the CBD; and simultaneously, the effective implementation of the CBD will assist in protecting TEK.
The viable options for developing effective benefit-sharing arrangements based on wider utilisation of TEK will depend on Indigenous peoples’ decisions as to how, when and to what extent they will allow this wider use. Benefit-sharing provisions may be very diverse, and often will relate to ‘micro economies’ of small-scale sustainable livelihoods, based on the use and management of biological resources and participation in research and monitoring.
Currently, most approaches to benefit-sharing involving traditional knowledge and biological resources remain largely unregulated. To achieve ‘best practice’ or ‘adequate practice’ requires the development and implementation of ethical standards and guidelines, codes of practice, and protocols. These must form the essential foundations of any ‘private law making’ processes that occur through contracts. This is discussed in more detail below.
In discussing protection of traditional knowledge and equitable benefit-sharing, it is useful to consider the ways in which Indigenous people - as the knowledge owners and custodians – have been defined. The critical point to make here is that Indigenous peoples have the right – fundamental to their self-identity and self-determination – to define themselves. However, there have been some attempts in various international standard setting developments to derive a universal ‘definition’ of Indigenous peoples.
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that have developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.[9]
As Darrell Posey points out, a ‘fundamental principle established by ILO 169 is that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this convention apply”’.[10]
Ownership and property are Western legal concepts that do not easily transpose onto traditional and Indigenous systems. The notion of transferability is the least compatible element of property. This is because traditional and Indigenous peoples identify themselves within communities who are tied to the land, typically based on spiritual connections and customary values and responsibilities. Moreover, there is often no single identifiable individual that could stand as the property owner of lands and biological resources. These characteristics of Indigenous societies and cultures provide a basis upon which Indigenous peoples’ knowledge systems must be understood as being intrinsically different to Western systems of property and knowledge.[11]
In a recent handbook on traditional knowledge, Hansen and VanFleet argue that traditional ecological knowledge is usually collective in nature and is often considered to be the property of the community as a whole. They elaborate:
[Traditional knowledge] is transmitted through specific cultural and traditional information exchange mechanisms, for example, maintained and transmitted orally through elders and specialists (breeders, healers, etc.), and often to only a select few people within a community. …
Traditional knowledge includes mental inventories of local biological resources, animal breeds, and local plant, crop and tree species. It may include such information as trees and plants that grow well together, and indicator plants, such as plants that show the soil salinity or that are known to flower at the beginning of the rains. It includes practices and technologies, such as seed treatment and storage methods and tools used for planting and harvesting. TK also encompasses belief systems that play a fundamental role in a people's livelihood, maintaining their health, and protecting and replenishing the environment. TK is dynamic in nature and may include experimentation in the integration of new plant or tree species into existing farming systems or a traditional healer's tests of new plant medicines.[12]
The rich and complex systems of traditional ecological knowledge protected and transmitted through customary law regimes are vulnerable to being undermined by dominant legal systems, especially intellectual property rights regimes. Attempts by Indigenous peoples to assert and protect their own approaches to managing their TEK have often given rise to discussions about the appropriateness, use and abuse of intellectual and cultural property rights. In this context, arguments about the need to develop a unique (sui generis) system of legal protection recognise the wide variety of situations in which TEK is held, transmitted and evolved. The emphasis in discussions about sui generis systems is that TEK should not be analogous to the ‘public domain’ as this concept is understood within the Western legal framework of intellectual property laws. Instead, protection should be provided through the recognition of customary laws that govern TEK. A system of this kind would result in legal pluralism – the operation of different legal systems in parallel with each other. Legal pluralism is well understood in other legal contexts (eg in Papua New Guinea); yet the reluctance to recognise Indigenous Law within the dominant Australian legal and political arena means that there can be no sound basis for effective protection or recognition of Indigenous and other human rights. Legal pluralism provides opportunities for the coexistence of separate, though complementary laws, and therefore allows for the recognition of Aboriginal customary laws.[13]
Recognition of Indigenous customary law should also recognise that Indigenous peoples’ systems of knowledge management have been in place for a very long period of time before European colonisation. These systems of knowledge management – or what might be referred to as an Indigenous Domain, or customary economy,[14] enabled Indigenous communities to maintain viable, dynamic and sustainable livelihoods attuned to their environments, and which incorporated complex rules and codes regulating exchange, trade and appropriate use of knowledge and resources. It is important to appreciate that these systems continue to shape Indigenous peoples’ relationships to their country and its natural resources.
TEK plays a pivotal role in the conservation and sustainable management of biological diversity. Given that Indigenous peoples are the owners and custodians of TEK, they also have a critical role in biodiversity protection and management. As many Indigenous peoples live in areas of rich biodiversity, and fragile and vulnerable environments, the maintenance and transmission of their traditional knowledge and practices relating to these ecosystems is especially vital.[15] The special relationship between Indigenous peoples and their environments is well documented. Martha Johnson of the Canadian Dene Institute, for example, has defined TEK as:
a body of knowledge built by a group of people through generations living in close contact with nature … [and which] … includes a system of classification, a set of empirical observations about the local environment, and a system of self management that governs resource use.[16]
Given the unique relationship between Indigenous peoples and the environment, to Indigenous peoples the notion of conserving biodiversity is not generally perceived as an activity that is separate from everyday life. As Posey argues, ‘biodiversity is not an object to be conserved … it is an integral part of human existence, in which utilisation is part of the celebration of life’.[17] This observation acknowledges that for Indigenous peoples, knowledge is as much about practice as it is about more intangible or spiritual concerns – indeed, these two dimensions are inseparable. Indigenous peoples’ approaches to their environments include notions of stewardship, and spiritual dimensions that are fundamental to biodiversity conservation.
The recognition of, and development of mechanisms for protection of TEK in international law and policy is critical. Such protection and recognition will assist the preservation of traditional and local knowledge at local, regional and national levels, encourage participation by Indigenous communities in environmental management, and, with prior informed consent, provide a framework for fair and equitable access and benefit-sharing. The challenge is to develop ethical and legal frameworks that respect Indigenous TEK in the huge variety of contexts in which it is held and managed. It is also vital to develop appropriate and ethical terms under which wider application of traditional knowledge and practices may be allowed.
The impacts on Indigenous peoples’ lands, cultures and resources from developments and planning decisions cannot be underestimated. Given this, is it possible to achieve a just balance between the demands and requirements of sustainable resource development, while at the same time upholding Indigenous peoples’ rights to self-determination (including their right to pursue their own development strategies)? As a first priority, it is fundamental that Indigenous peoples must have legally recognised title to their land, seas and natural resources, and the power to control their use and management in a way that they consider appropriate.
There are several international declarations that recognise the important connections between humans and planning. The 1972 Declaration of the United Nations Conference on the Human Environment stated that:
The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.[18]
Some declarations and statements recognise that development and planning should respect the diversity of human societies and cultures. For example, the 1974 Cocoyoc Declaration states that:
Development should respect, maintain and enhance the diversity of natural life and human culture to maintain and expand the availability of options for this and future generations. … This requires that homogenisation of land use and human lifestyles be avoided.[19]
The 1981 Declaration of San Jose[20] defines the right to ‘ethno-development’ as:
the amplification and consolidation of ... a culturally distinct society's own culture, through the strengthening of its capacity to guide its own development and exercise self-determination ... and implying an equitable and proper organisation of power.[21]
The 1986 Declaration on the Right to Development, the 1992 Rio Declaration 1992, Agenda 21, the 2002 World Summit on Sustainable development: Plan of Implementation, the UN Millennium Development Goals (MDGs), and the Millennium Project Report 2005[22] have all supported the rights of Indigenous and local peoples to sustainable development, and equitable participation. Some of these statements also support the introduction of comprehensive and specific poverty reduction strategies, as a key to achieving sustainable development.
There are many different values and perspectives that inform research and practice related to TEK. Much of the authors’ work has been to locate TEK as part of the integrated and comprehensive rights of Indigenous peoples, including self-determination, at the international and national levels.[23] These comprehensive rights have been powerfully expressed by Indigenous peoples around the world in the 1993 Draft Universal Declaration on the Rights of Indigenous Peoples, which was the culmination of ten years of debate and drafting by the United Nations Working Group on Indigenous Populations (Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Human Rights Commission). Other important expressions of Indigenous rights to TEK and biological resources are contained in the Convention on Biological Diversity (CBD – discussed below) and ILO 169, Convention Concerning Indigenous and Tribal Peoples in Independent Countries.
It is now evident that a ‘rights-based’ approach to sustainable development is particularly worth examining, as it draws together human rights and environmental rights. This relationship is demonstrated in the Draft Declaration on Principles on Human Rights and the Environment, which states
1. Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.
2. All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights are universal.[24]
Aboriginal and Torres Strait Islander people have human and citizenship rights by virtue of being Australian citizens. The universal system of human rights applies equally to all Indigenous peoples. As a consequence, Aboriginal and Torres Strait Islander people must be able to enjoy and exercise these rights. At the same time they also have Indigenous rights because of their distinct status as Indigenous peoples. These rights – whether human rights, citizenship rights, or Indigenous rights – are not created by international standards and norms, and conferred on peoples. Rather, they are inherent in people as humans, and the role of the international rights regime is to recognise, reinforce, and uphold these rights.
Perhaps the most important right that Indigenous peoples have under the international system is that of self-determination. They have this right, as do all peoples, under the international charter of human rights (International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention and the Convention for the Elimination of All Forms of Racial Discrimination). Article 1 of both the Covenant on Civil and Political Rights (ICCPR), and the Covenant on Economic, Social and Cultural Rights provides a universal right for self-determination:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
The ICCPR goes further, and at Article 27, contains an important provision that offers scope for Indigenous peoples to exercise their rights collectively to practice their culture:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
This provision forms the cornerstone of endeavours by Indigenous peoples globally to campaign for a more precise articulation of specific Indigenous peoples’ rights, including especially collective, cultural rights.
Indigenous peoples’ right to self-determination is articulated in the Draft Declaration on the Rights of Indigenous Peoples. The Draft Declaration includes the right to own, control, and manage their ‘cultural and intellectual property’, including cultural knowledge. By implication, this right therefore includes their right to determine the nature of, and to define their cultural and intellectual property and cultural knowledge.
Indigenous peoples can use international law to advocate for recognition of their rights, including rights in traditional knowledge. For example, Australia’s periodic reporting and monitoring obligations under international treaties provide an important avenue for Aboriginal and Torres Strait Islander peoples’ concerns to be articulated where they believe their capacity to exercise and enjoy their rights has been diminished or restricted.
Complaint handling mechanisms are available under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), and through similar arrangements under the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention Against Torture (CAT). In 1991 Australia became a party to the First Optional Protocol to the ICCPR.[25]
In recent years there has been a number of comments, reports and observations by the CERD Committee, concerning Australia’s performance with regard to rights of Indigenous peoples. For example, in March 1999 a Decision of the CERD Committee expressed concerns about the amendments to the Native Title Act 1993 (Cth). The Decision states that:
while the original 1993 Native Title Act was delicately balanced between the rights of indigenous and no-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title.[26]
The Committee considered that some of the amendments were discriminatory, and that these amendments raised concerns about Australia’s compliance with the Convention.[27] The Committee also expressed its concern about a ‘lack of effective participation by indigenous communities in the formulation of the amendments’ to the Native Title Act.[28]
These concerns highlight the need to ensure effective consultation and participation by Aboriginal and Torres Strait Islander peoples in law and policy, in accordance with rights established under international treaties. These participation rights were reinforced in a General Recommendation of the CERD Committee which highlighted the obligations that this Convention places on State Parties to the Convention to ‘take all appropriate means to combat and eliminate racism against Indigenous peoples’.[29] Among the measures that this General Recommendation outlines, which States are encouraged to take, are to:
Ensure that members of all Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent; and
Ensure that Indigenous communities can exercise their rights to practice and revitalise their cultural traditions and customs, to preserve and practice their languages.[30]
As Indigenous academic Larissa Behrendt points out, there are several ways to achieve greater protection and recognition of Indigenous peoples’ rights. These include amendments to the Constitution, increased use of international law, and a Bill of Rights.[31]
NGOs, governments, corporations and researchers engage with Indigenous peoples and nations from a wide variety of value perspectives and for different purposes. There is a need for greater transparency in revealing these values and purposes when negotiating relationships and projects with Indigenous peoples. A key element is to include the recognition of comprehensive rights of Indigenous peoples, and their needs and aspirations for sustainable development and poverty alleviation. In some situations there is desperate urgency to meet basic needs and alleviate poverty in Indigenous communities.
There are limited experiences with poverty reduction in the international arena that are specifically directed to Indigenous peoples.[32] The International Work Group for Indigenous Affairs (IWGIA) has discussed needs-based approaches versus rights-based approaches.[33] One IWGIA author, Maria Quispe, concludes that this dichotomy can be a trap when planning economic and social policy involving Indigenous peoples. A rights-based approach usually tries to:
1. Make People’s needs become a right;
2. Promote peoples knowledge about the existence of their rights; and
3. Develop political strategies to make people’s rights become reality.[34]
The argument continues that we should never be afraid to re-think certain rights, and the ways in which we try to make them mean something beneficial.[35]Traditional rights and development approaches have failed Indigenous peoples, and they are increasingly irrelevant to the effective realisation of Indigenous self-determination and sustainable development, as the IWGIA argues:
There is a need to further develop an integrated approach to working with Indigenous Peoples’ rights and development simultaneously as it would contribute to the on-going work on designing effective poverty reduction strategies.[36]
There is also a large discourse on ethics. This paper will not attempt to canvas this broader area. In general, the thrust of much contemporary research in, and approaches to sustainable development involves attempts to construct ethical relationships between Indigenous and non-Indigenous peoples. The failure to recognise and understand the differences in values and culture may be a reckless act that jeopardises the ethics and the quality of research. This is pointed out in a set of guidelines developed by the Australian National Health and Medical Research Council, which states that:
The responsibility for maintaining trust and ethical standards cannot depend solely on rules or guidelines. Trustworthiness of both research and researchers is a product of engagement between people. It involves transparent and honest dealing with values and principles, the elimination of 'difference blindness' and a subtlety of judgement required to eliminate prejudice and maintain respect and human dignity.[37]
There is some discussion in Australian law about the nature of the legal relationship between the nation-state and Indigenous peoples. This discussion has been largely influenced by judicial cases and legal developments in Canada, where the common law ‘recognises that the Crown owes a fiduciary obligation to Aboriginal people’.[38] This fiduciary, or ‘trust-like’ relationship, in Behrendt’s view, ‘derives from the nature of Aboriginal title’, and remains ‘even when that common law feature has been entrenched in legislation’. Although there is a fiduciary relationship in Australian Native Title law, ‘the courts have to date recognised no such obligation owed by the Crown’.[39] Notwithstanding that there has been no recognition of a trust-relationship with Indigenous peoples in Australia, it is nonetheless an important principle, which should influence ethical approaches to engagement processes with Aboriginal and Torres Strait Islander people in regard to natural resources and biodiversity.
The CBD places Indigenous and local knowledge, as well as traditional technologies and biogenetic resources, under nation-state sovereignty. Thus, no matter how liberal or generous provisions might appear, Indigenous peoples are faced with a difficult conundrum. Their contributions, central role in sustainable development and conservation, and rights as decision-makers and beneficiaries are recognised beyond any previous international binding treaty. Yet despite this, Indigenous peoples are reluctant to accept that ultimate control over resources lies with nation-states. Few Indigenous groups are willing to allow this a priori usurpation of their fundamental rights of self-determination no matter what promises and favourable interpretations may arise.
Given this fundamental premise in the CBD concerning state sovereignty over biological resources, the CBD cannot significantly contribute to the resolution of basic issues raised in the Draft UN Declaration on the Rights of Indigenous Peoples, namely Indigenous peoples’ calls for self-determination. However, it may help pave the way for the development of useful instruments that work towards more equitable partnerships with Indigenous peoples.
Unfortunately, the CBD does not in itself provide any explicit legal means to recognise, or to protect Indigenous peoples’ rights in their TEK, or any mechanisms to compensate Indigenous peoples for use of their TEK. Neither are there mechanisms for such recognition or protection in any other global legal forum. The CBD does, however, provide a framework for Parties to develop protection mechanisms.
At national levels, the licensing arrangements provided for by intellectual and cultural property rights laws may have the potential to support the development of negotiated partnerships, based on the sharing and use of TEK and associated practices. IPR regimes may also offer some limited scope for Indigenous peoples to seek compensation for use of Indigenous technologies and knowledge. However, in general, IPR systems do not conceptually provide sufficient scope for the real recognition and protection of TEK, as outlined below.
With regard to the recognition and protection of TEK, and the development of equitable benefit-sharing arrangements, articles 8(j) and 10(c) are the most relevant provisions in the CBD for Indigenous peoples. Article 8(j) states encourages States, ‘subject to national legislation’, to:
… respect, preserve and maintain knowledge, innovations, and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity 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.
The Explanatory Guide to the CBD notes that the proviso of subjecting these obligations in Article 8(j) to national legislation is unusual.[40] The objectives of this Article could be defeated, since the wording implies that existing national legislation will take precedence. This Article could also imply that the interests of Indigenous peoples regarding their traditional knowledge can be respected and preserved, without addressing outstanding issues of their rights to land and biological resources. It is clear that Indigenous people cannot continue these traditional practices in isolation from the land and biological resources that they need.[41] Recognition of the lands, territories and resources of Indigenous peoples, as a foundation for their rights and interests in traditional knowledge, would be consistent with a growing body of international obligations such as ILO 169 and the Draft Universal Declaration on the Rights of Indigenous Peoples.
If Article 8(j) is to be given legal meaning, which more fully addresses the concerns of Indigenous peoples, the following fundamental issues must be considered:
1. Indigenous concepts of conservation and sustainable use need to be much better understood by the wider national and international community. This should be facilitated by providing the resources, and access, for Indigenous peoples to express these concepts directly in their own words. It also involves recognition of wide cultural diversity, even within small groups of Indigenous peoples.[42]
2. Indigenous knowledge, innovation and practices are also poorly understood. Ethnographic and ethnobiological studies are limited and have not necessarily been undertaken for the policy purpose of conservation, and sustainable use of biological diversity. The knowledge and practice is deeply embedded in Indigenous culture, and appropriate research and policy development will need to be undertaken through Indigenous control or partnership.
3. The phrase ‘Indigenous and local communities embodying traditional lifestyles’ as used in the Convention on Biological Diversity needs to be critically considered. Many Indigenous peoples with strong traditional links, and involvement with their communities and lands, may be excluded from the provisions of Article 8(j), because the methods and techniques they use in regard to their knowledge may not be considered as ‘traditional’ in the meaning of the term as used by the CBD, or because they live in urban or semi-urban situations. In particular, this provision of the CBD fails to consider the realities of contemporary Indigenous culture.
4. Contracting parties are meant to promote wider application of Indigenous knowledge with the approach and involvement of relevant Indigenous people. The holder/s of the knowledge or technology may be an individual, group or community. This will make the participatory provisions difficult to implement without sound applied anthropological studies and co-operation from individuals and communities. It is unclear who can, or should, determine the issue of who are the ‘holders’ of knowledge and technology.
5. The provision in the CBD for the ‘equitable sharing’ of benefits from the wider application raises the same issues discussed above. Will ‘equity’ be determined from an Indigenous perspective, and does it imply the recognition of cultural and intellectual property rights held by Indigenous peoples? At the very least, Indigenous peoples will expect that the wider application of their knowledge, practices and technology would be preceded by recognition of Indigenous concerns in the first part of Article 8(j). The analogy is with the idea of a ‘trust’. If national governments are to use Indigenous knowledge, innovations and practices for the wider public ‘good’, then there should be a clear obligation towards the Indigenous peoples who have developed them. It would be against the intent (as expressed in the CBD Preamble) of the Convention, to construe Article 8(j) purely as a means of appropriating Indigenous knowledge without reciprocity. The legal and practical forms of this reciprocity remain to be worked out under the Convention.
Article 10(c) requires Contracting Parties to ‘protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements’. This Article is important, especially if read in conjunction with Article 8(j), since it explicitly acknowledges the critical aspect of practice, or use of biological resources that are characterised as customary, thus providing an opportunity to consider supporting traditional knowledge and practices that derive from, or are based in Indigenous customary law.
Article 6 of the CBD requires Contracting Parties to develop national strategies, plans or programmes for the conservation and sustainable use of biodiversity. This is one of the most important obligations for implementation, under the Convention.
The identification and monitoring provisions (Article 7) involve national surveys or inventories of biological diversity. Article 14 deals with environmental impact assessment and minimising adverse impacts. Those activities must involve affected Indigenous peoples in a significant way. These Articles will provide important bases for Indigenous participation in planning for biodiversity conservation at the national and local levels, and they complement the provisions articulated in Articles 8(j) and 10(c) of the CBD.
Most of the Articles in the Convention recognise that non-Indigenous laws, policies and practices will change as we learn more about biodiversity and develop more effective strategies to manage and protect it. Indigenous culture has always been subject to some change. Indeed, this is why some of their biodiversity strategies and protective systems have been so effective. If expressions such as ‘customary use’ and ‘traditional cultural practices’ are interpreted as protecting only past, or existing, uses and practices, this would deny contemporary Indigenous self determination and undermine many of the purposes of the Convention. The relevant focus is Indigenous sustainable use. Judgments about ‘traditionality’ will impede Indigenous co-operation on these issues.
The Conference of Parties (COP) to the CBD has developed an increasing focus on specific Indigenous peoples' issues, including the implementation of Article 8(j). The momentum on this work grew with the third meeting of the COP held in Buenos Aires, Argentina, in November 1996, which agreed that a workshop be convened to explore the development of a work plan on Article 8(j) and related provisions. Resulting from this decision, a workshop was held in Madrid in November 1997, and a report from that workshop submitted to the fourth meeting of the COP, which was held in Bratislava, Republic of Slovakia, in May 1998. The COP-4 decided (Decision IV/9) to establish an Ad Hoc Open-ended Inter-sessional Working Group to address the implementation of Article 8(j) and related provisions. The first meeting of this Working Group was held in Seville, Spain, in March 2000. The work programme of this working group has developed to increasingly more comprehensive levels over the ensuing years. The second Article 8(j) Working Group met in Montreal, Canada, in February 2002, and provided a report to the sixth COP. COP-6 met in The Hague, Netherlands, in April 2002, and reviewed the progress of work on Article 8(j). Among other aspects, the COP requested at its sixth meeting that the Working Group on Article 8(j) address sui generis systems for the protection of traditional knowledge. It identified the following issues on which to focus:
1. Clarification of relevant terminology;
2. Compiling and assessing existing Indigenous, local, national and regional sui generis systems;
3. Making available this compilation and assessment through the clearing-house mechanism of the Convention;
4. Studying existing systems for handling and managing innovations at the local level and their relation to existing national and international systems of intellectual property rights, with a view to ensure their complementarity;
5. Assessing the need for further work on such systems at the local, national, regional and international levels;
6. Identifying the main elements to be taken into consideration in the development of sui generis systems; and
7. The equitable sharing of benefits arising from the utilization of traditional knowledge, innovations and practices of Indigenous and local communities, taking into account the work carried out by the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, with a view to promote mutual supportiveness, and existing regional, subregional, national and local initiatives.[43]
The very significant literature, research and debate that is occurring both within the auspices of the CBD and elsewhere, relating to access to biological and genetic resources and benefit-sharing, is critically important for Indigenous peoples, and often overlaps with the work being developed under Article 8(j).
The Convention on Biological Diversity encourages Contracting Parties to develop legislation for access to biological resources and fair and equitable benefit-sharing.[44] The CBD has a Working Group on Access and Benefit-Sharing, which is developing standards and exploring the feasibility of international measures. This aspect of the work of the CBD has occupied as much attention as that concerning measures for protection of TEK.
The provision in Article 8(j) for access and benefit-sharing encourages Parties to ‘promote the wider application of traditional knowledge, innovations and practices’. This must be done, the Article states, ‘with the approval and involvement of the holders of such knowledge, innovations and practices’. This means that wider use should be subject to the consent of the knowledge holders. In Australia, as elsewhere, implementing these provisions effectively will require considerable thought being given to ensuring that Indigenous people are provided with opportunities and resources to negotiate on equal terms, and to participate as equal partners, in activities involving the use of their knowledge and practices. It is critical to ensure that sound approaches are developed to provide that the wider use of TEK is only carried out on the basis of free, prior and informed consent of the Indigenous knowledge holders.[45] Among the challenges in formulating good legislative regimes, is to ensure the effective participation by, and negotiation with, all relevant and appropriate Indigenous peoples. This will require, among other things, the identification of appropriate knowledge holders and custodians, and others in communities whose prior informed consent is necessary. The Commonwealth and some State and Territory governments (Queensland and the Northern Territory) are introducing, or considering legislative regimes for regulating access to biological resources. These developments vary considerably in the extent to which they include, or are considering provisions for prior informed consent, if at all.
Article 15 of the CBD provides for the rights of nation-states over their natural resources. This Article also encourages Parties to develop measures for facilitating access by others to their biological (or genetic) resources, in the interests of sustainable use and conservation of biodiversity. Article 15 also requires that access to biological and genetic resources shall be on the basis of mutually agreed terms,[46] and prior informed consent.[47] Article 15 also[48] provides for Contracting Parties to develop measures for fair and equitable sharing of the benefits arising from the ‘commercial or other utilization of genetic resources’.
Legislative enactment of these provisions of the CBD is based on the assumption that the Contracting Party (ie, the national government) is the provider of the biological and genetic resources in question. In practice, this needs to be reconsidered, especially to take into account Indigenous peoples’ communal and customary rights and interests. To properly recognise Indigenous peoples’ rights and interests, the implementation of Article 15, taken together with Article 8(j), will need to consider the question of Indigenous ownership, and/or custodianship of natural resources and associated knowledge and practices.
One of the ways to possibly resolve the tensions that seem to be apparent in the CBD regarding the rights and interests of Indigenous peoples,[49] vis-à-vis those of the nation-state as the Contracting Party, or owner of natural resources under Article 15, is through equitable partnerships. As Sarah Laird, a leading writer in this area, points out, ‘although the CBD extends to national governments the rights to regulate access and benefit-sharing, existing relations between national governments and a range of domestic groups must be considered’.[50] It is of particular importance to consider the rights and interests of Indigenous peoples, as these peoples are typically the most powerless and marginalised in the development of partnership arrangements. The formulation of ethically sound benefit-sharing agreements will need to ensure equitable partnerships based on the recognition of Indigenous peoples as owners and providers of biological and genetic resources, knowledge and practices.
The concept of fair and equitable partnerships, and the many issues that must be considered in developing these in practice, have been the subject of much discussion in recent years. Laird states:
Frameworks for equitable partnerships for biodiversity research and prospecting are emerging that promote principles and practices, such as the fair and equitable sharing of benefits, prior informed consent and ongoing consultation, and adherence to standards for best practice.[51]
The development of best practice in fair and equitable benefit-sharing partnerships will need to properly address issues such as Indigenous rights and interests, including protection measures for traditional knowledge, and codes of ethics and research guidelines.[52] At the heart of developing equitable research relationships with Indigenous peoples are the issues of recognition of rights, and prior informed consent. As articulated by Posey, and reinforced by Laird and Noejovich, ‘equitable research relationships are most likely to result when based on a bundle of basic rights, including rights to self-determination, autonomy and territory, as well as basic human and cultural rights’.[53]
The importance of prior informed consent cannot be underestimated, as these provisions are one way in which Indigenous peoples can exercise their rights to permit, or to veto research, developments, and other activities that impact on their lands, communities and livelihoods. Prior informed consent means:
the consent of a party to an activity that is given after receiving full disclosure regarding 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.[54]
In the view of some writers on this subject, ‘prior informed consent should be sought both prior to and throughout implementation of a research project, as part of dynamic consultations’. It is a ‘process, rather than an event’.[55]
The concerns about prior informed consent, protection of traditional knowledge, and Indigenous participation, are most prominent in the context of biodiversity prospecting (‘bioprospecting’), and in the commercial use of biodiversity and traditional knowledge. There is a large and growing literature on bioprospecting and benefit-sharing, and many developments occurring internationally.[56] For Indigenous peoples, one of the chief mechanisms that can be used to ensure that their rights and interests are fully incorporated in any bioprospecting activities, is equitable contractual agreements. Contracts can take many forms, and can be used to entrench a range of matters, including recognition of traditional knowledge.[57]
Although there are many advantages to developing good contracts regulating the management of traditional knowledge and bio-resources, there are also some potential concerns. A major concern is a relative lack of consistency and uniform standards in contract design and implementation. Contracts for traditional knowledge and biodiversity should be based on international standards, such as those being developed by the Conference of Parties to the Convention on Biological Diversity. There is also a general lack of accountability and transparency in contracts; since these are usually not subject to the same rigorous standards of regulation as government policy. There are also inevitably inequities in the power relationships between Indigenous peoples and those with whom they negotiate contracts and agreements. Indigenous peoples usually lack the same level of negotiating skills and resources, and access to technical and legal expertise as those they enter into negotiations with. Another concern about contracts is that they only oblige those who are parties to the agreement. Others who are not party to a contract, yet who may have vested interests therefore have no legal avenues to articulate and pursue their interests.
The concerns about the ad hoc, and unregulated nature of contracts and agreements can, at least in part, be alleviated by the introduction of sound national or regional laws to regulate biodiversity, provide for ethical conduct, and entrench Indigenous rights in TEK and bioresources. The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, produced in 2002 by the CBD Working Group on Access and Benefit-Sharing are a useful international development that could guide best practice. Australia’s Regulations governing access to biological resources on Commonwealth lands, under Section 301 of the Environment Protection and Biodiversity Conservation Act 1999 establish domestic standards.
The development of sound protocols, codes of ethics, and guidelines may also form important elements to be incorporated into equitable benefit-sharing arrangements, that involve Indigenous peoples and their knowledge and practices.
A close analysis of the CBD reveals a serious risk that Indigenous peoples’ traditional knowledge, innovations and practices will be seen as a ‘resource’ for the exploitation of biological diversity, rather than as the collective heritage of peoples who hold legal and cultural rights in relation to it. This poses ethical and practical questions in seeking to involve Indigenous peoples. TEK offers a potential source of wealth in the pharmaceutical and other industries and a constant focus of research activity. At the present time, virtually none of the profits are returned to Indigenous peoples. Several Articles in the CBD are primarily concerned with promoting commercial access to genetic resources, and promoting the commercial access and transfer of technology. The relevant articles[58] make no specific provisions for Indigenous peoples, and they have to be read in the context of the earlier articles.[59]
Articles 16, 17 and 18 provide for access and transfer of knowledge and technology. The term ‘technology’ in Article 16 can encompass Indigenous and traditional knowledge and technology, which is explicitly referred to in Articles 17(2) and 18(4). The only basis for Indigenous ‘control’, ‘participation’ and ‘benefit’ as these might refer to traditional knowledge and technology is contained in Article 8(j). The scene is set for wide use of Indigenous knowledge and practices relating to biodiversity. However, few jurisdictions have developed legislation or codes of conduct that will ensure that some of the benefits are returned to Indigenous communities.
Much research is needed to understand the effectiveness of traditional technologies. Research, monitoring, and inventory criteria, priorities, and methods need to be guided and controlled by Indigenous and local communities. Finally, to successfully implement the provisions of the CBD, financial mechanisms will have to be made available to Indigenous and local communities.
The CBD attempts to establish a new approach to sustainable development by seeking to conserve biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits that result from the wider use of genetic resources. There has been a growing and important standards setting process concerned with establishing principles and guidelines for prior informed consent (PIC), associated with accessing genetic resources and TEK. For example, the Bonn Guidelines have established a clear international obligation relating to PIC when accessing genetic resources.[60] Although the CBD has been widely adopted by Nation States, the extent to which any provisions regarding PIC have been implemented and enforced through national laws is limited, and varies considerably around the world.
Biodiversity research and accessing biological resources encompasses a wide range of activities that should certainly be subject to PIC, at least as a means of developing and ensuring best practice. Parshuram Tamang, an Indigenous Expert Member of UN Permanent Forum on Indigenous Issues, has recently elaborated this broader approach to the principle of free, prior and informed consent[61]. He locates the early origins of principles for PIC in a context of the relocation of Indigenous Peoples from their lands, as articulated under ILO Convention 169, the Draft Declaration on the Rights of Indigenous Peoples, the policies of the World Bank, the UNDP, and the World Commission on Dams. This latter organisation has stated in a report that PIC should guide the building of dams that might affect Indigenous Peoples and ethnic minorities.[62] Tamarang also identifies intellectual property rights as a key area for consideration in the application and extension of the principles of free, prior and informed consent.
The World Intellectual Property Organization (WIPO) Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), was established in 2001 as an international policy forum.[63] This built on traditional knowledge work commenced by WIPO in 1998. The first steps involved consultations about the needs and expectations of some 3,000 representatives of TEK-holding communities around the world. WIPO’s work ranges from the international dimension of TEK and cooperation with other international agencies, to capacity building and the pooling of practical experiences in this complex area.
The IGC’s work on legal approaches to protecting TEK focuses on the use of knowledge such as traditional technical know-how, or traditional ecological, scientific or medical knowledge. This encompasses the content or substance of traditional know-how, innovations, information, practices, skills and learning of TEK systems such as traditional agricultural, environmental or medicinal knowledge. Their work distinguishes between the positive protection (recognition) of intellectual property rights in TEK using existing IP laws, innovative legal strategies and evolving sui generis measures for protecting TEK, and defensive protection to safeguard against illegitimate IP rights over TEK.[64]
One of the more recent international conventions, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) has as its purposes the safeguarding of intangible cultural heritage, ensuring respect for intangible heritage of communities, groups and individuals, raising awareness at the local, national and international levels of the importance of intangible cultural heritage, and providing for international co operation and assistance. Examples of subject matter falling within the definition of intangible cultural heritage include:
This Convention incorporates a provision for a ‘national competent body’ to oversee the protection of intangible cultural heritage. The ICH Experts Committee considered a proposal for ‘Principles of Consultation’, as an important way of limiting the adverse consequences occasioned by granting the State the sole discretion to decide how, and when to protect cultural heritage as found in the World Heritage Convention.[66] This is consistent with best practice in modern environmental law concerning participatory approaches between Indigenous and non-Indigenous communities. The intangible heritage convention does not explicitly mandate a duty to consult. However, it may be implied in the requirement on States to ensure the participation of communities, identification and management of intangible cultural heritage.[67]
There have recently been some initiatives by Indigenous peoples to establish and control their own organisations specifically aimed at protecting their cultural and intellectual property rights. One such initiative is the Call of the Earth, an independent, Indigenous controlled organisation bringing together leading native voices advancing Indigenous peoples' perspectives on intellectual property in the international arena.[68] This initiative received start-up support from the Rockefeller Foundation. The Call of the Earth Global Dialogue on Intellectual Property (2003-2006) brings together Indigenous experts from different regions and sectoral interests to explore common perspectives, engage in the analysis of emerging issues surrounding Indigenous peoples and intellectual property, identify needs and opportunities for organising the knowledge base, regional thematic dialogues and national round tables, and identify and foster synergy between various local initiatives.
The TRIPs Agreement sets the minimum level of intellectual property rights which must be provided by all State parties to the General Agreement on Tariffs and Trade (GATT), and subsumed by all member States of the World Trade Organization (WTO).[69] In the views of some, however, TRIPS is ill suited to the protection of the knowledge of Indigenous and local communities, and the implementation of Article 8(j) of the CBD.[70]
Unlike States having the flexibility to decide whether or not they wish to ratify a specific international treaty or subsequent protocol adopted under a particular treaty, members of the WTO are obliged to adhere to and be bound by all agreements administered by the WTO by virtue of their membership in the WTO.
With respect to the TRIPS Agreement, members may implement more extensive protection provided that such protection does not contravene the provisions of the TRIPS Agreement. Intellectual property under the TRIPS Agreement is not defined in its own right. TRIPS refers to seven categories of IPRs, namely, copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits and protection of undisclosed information (including trade secrets or test data).[71]
Systems of IPR’s seek to reward innovation, and promote access to the products arising from it by creating new property rights and seeking to balance the public interest. TRIPS arose out of the Uruguay Round of multilateral trade negotiations and established a global framework for the protection of specified IP, including many ‘creations’ linked to biodiversity. IPR’s over biotechnology have been expanded, despite very serious ethical, environmental, economic and legal considerations that suggest moderation and caution in this regard.[72] Members are required to recognize patents over micro-organisms and microbiological processes for the production of plants and animals. However the TRIPs Agreement permits the exclusion of plants and animals from patentability. Article 27(2) also allows Members to exclude from patentability innovations in order to protect animal, plant life or health or to avoid serious damage to the environment.[73] In relation to plant varieties, Members are allowed to develop sui generis protection for new plant varieties.
Overall, the effect of TRIPS is to extend IP protection over areas of biodiversity that have not been previously provided for, and that sometimes extend into the realm of ‘production processes’. The extent to which TEK can be subject to this regime is the subject of considerable debate. The increased ‘harmonization’ and international protection of IP is considered to be of great advantage to developed industrialised nations, with few reciprocal benefits to the developing world.[74]
The term ‘Indigenous cultural and intellectual property’ is often taken to include Indigenous knowledge, whether it is in the form of biological knowledge, customary knowledge or created tangible materials, that is passed on from one generation to the next. However, while the term Indigenous ‘intellectual property’ is often used to broadly denote a range of subject matter that includes TEK, it is also important to make clear the distinctions between Indigenous knowledge and the conventional, ‘Western’ concept of intellectual property.[75]
In her Study on the Protection of Cultural and Intellectual Property of Indigenous Peoples, UN Special Rapporteur Erica-Irene Daes argues that the distinction between ‘intellectual property’ and ‘cultural property’ is inappropriate when considering Indigenous peoples’ interests. Instead, a holistic and integrated view of Indigenous heritage, encompassing all aspects of their lives, is essential. This is a more compatible view as it reflects Indigenous philosophies of integration between humans and lands and environments. Daes writes:
… heritage includes all expressions of the relationship between the people, their land and the other living beings and spirits which share the land, and is the basis for maintaining social, economic and diplomatic relationships – through sharing – with other Peoples. All of the aspects of heritage are interrelated and cannot be separated from the traditional Territory of the people concerned. What tangible and intangible items constitute the heritage of a particular Indigenous peoples must be decided by the people themselves ...[76]
With this in mind, in formulating the concept of property rights to protect Indigenous culture, it is important to recognise the needs and rights of Indigenous peoples under international and domestic law. In failing to do so, we will have a system of property rights that does not adequately address their needs, and furthermore may work to disintegrate their community.
The following is a list of some of the key rights that Indigenous peoples in Australia call for in relation to intellectual and cultural property:
The conventional ‘western’ system of intellectual property was developed to protect the marketable property of non-Indigenous individuals and corporations. This is a restricted form of property, which is severed from the original components of the ‘invention’, and from the societies that may have nurtured its initial stages. It is the modification or ‘discovery’ through non-Indigenous technology that is usually rewarded and protected by these intellectual property rights.
Indigenous peoples in contemporary society require an economic base. This is as much the case where many of their activities and lifestyles retain some ‘traditional’ aspects, as it is for those in urban and semi-urban situations. In many situations, Indigenous peoples’ ecosystems have been altered, and their political circumstances changed to the extent that they cannot (or do not wish) to live a totally subsistence lifestyle. The sustainable use of resources, and derivation of economic benefits from this use, may be consistent with the maintenance of Indigenous lifestyles or cultural adaptation over time. Intellectual property rights regimes are one type of legal strategy that may be considered by Indigenous peoples to protect their biological resources and cultural practices. However, these have limited scope, especially with regard to their capacity to enable Indigenous people to develop an economic base that will better support them in contemporary circumstances.
It is difficult to formulate a version of intellectual and cultural property rights appropriate for recognising and protecting Indigenous peoples’ cultural heritage at the present time. Some of the difficulties with using existing laws are as follows:
The intellectual and cultural property rights of Indigenous peoples require further consideration and development having regard to the specific provisions of the Convention on Biological Diversity.[80]
The incapacity of conventional western intellectual property rights (IPRs) regimes to provide effective protection for Indigenous peoples’ rights and interests in TEK is well documented.[81] However, notwithstanding these limitations, conventional IPRs should not be overlooked in terms of what options they might offer for such protection. A useful overview of these options, as well as a critique of IPRs is provided in a recent handbook by Hansen and VanFleet, produced for the American Association for the Advancement of Science, and outlined below.[82]
Patents ‘provide a legal monopoly over the use, production and sale of an invention, discovery or innovation for a specific period of time (usually about 20 years)’.[83] There are usually three criteria for a successful patent application: novelty, non-obviousness, and industrial application. Although there are potentially considerable economic gains available through patents, there are also some negative aspects for the applicants and the patent holders. These include the requirement that full disclosure about the invention is to be provided to the patent authority, the fact that a temporary monopoly is created, and that the application process can be time-consuming and expensive. Of even greater concern is the fact that at the end of the monopoly patent period the invention becomes part of the public domain. The limitations that patents pose in regard to communally held or selectively held TEK that is governed by customary law are clear. Similar constraints apply to petty patent and plant patent legal regimes.[84]
Another mechanism that has been discussed as having the potential for protecting TEK is the use of traditional knowledge registries. These are described as ‘official collections of documentation that describe traditional knowledge’.[85] A register for traditional knowledge can be developed and maintained by an Indigenous community and kept only within the community, or it can be established as an external registry. If it is a community registry, then there is greater scope for the community to control all aspects of it. If a registry is public, then it may be used as a means of ‘defensive disclosure against inappropriate patents lodged by people outside the community and as a cultural education and preservation mechanism’.[86] A disadvantage of public registries is the lack of control that communities would have regarding access to, and use of such knowledge when it becomes part of the public domain.
If a registry is private, then the knowledge contained within it is not in the public domain, and therefore this registry can be effective as part of a sui generis Indigenous intellectual property rights system. This type of registry may also offer some protection for trade secrets (under certain circumstances), promote cultural and historic preservation, and provide a basis for access and benefit-sharing agreements. Private registers have been very important in native title claims and negotiated agreements, particularly in Canada. The disadvantages of these registries relate to defensive disclosure problems (in the absence of sui generis legislation enabling this), concerns about using this novel and modern form of preserving and promoting TEK, and the effect that this may have on Indigenous cultures. Discussions about the role of registers, including intellectual property considerations are rapidly evolving, as indicated for example in a recent report by the United Nations University’s Institute of Advanced Studies.[87]
Trade secrets ‘protect undisclosed knowledge through secrecy and access agreements, which may also involve paying royalties to knowledge holders’.[88] Among the requirements for knowledge to be classified as trade secret are that the subject matter must possess some commercial value, and not be in the public domain.
Trade secrets are usually combined with contractual agreements, which remain enforceable even if the trade secret happens to enter the public domain. Trade secrets have little legal protection that can ensure the continuation of ‘secrecy’. It is also difficult to protect them against misappropriation, with the exception of ‘cases of breach of confidence and other acts contrary to honest commercial practice’.[89] If TEK, considered as a ‘trade secret’, leaks into the public domain, then it will become vulnerable to misuse by the wider public.
The Australian Trade Marks Act 1995 (Cth) defines a trade mark as a ‘sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’.[90] The main requirements for registering a product as a trademark is that is must be ‘distinct’, and that there should be no confusion as to the source of the product.
Trademarks have the capacity to be used to identify products based on traditional knowledge. Examples are ‘wild harvest’ bush tomatoes in Australia, and ‘wild rice’ in Canada. An advantage of using trademarks for registering products based on TEK is that this adds value to the original product, and companies that use this product under license ensure its authenticity.[91] One of the disadvantages with using trade marks in this way is that it cannot restrict the wider use of TEK, thus making this knowledge vulnerable to exploitation.
A geographical indicator is a way in which a product can be identified as having originated in a specific locality, where the particular qualities or characteristics of the product are attributable to its geographical location.[92]
Bordeaux wine from France, Parma Cheese from Italy, and Stilton Cheese from England are well-known examples of geographical indicators. A geographical indicator may provide limited protection for products that are based on TEK, that are identifiable by location. However, they do not provide protection for a product such as ‘wild harvest’ bush tomatoes, where the TEK associated with these is used over a wide area, and is not closely identified with one particular location or region. Geographical indicators also do not protect against the use and abuse of TEK, if a product using this knowledge does not involve a claim of a geographical name.
When a patent office is determining whether or not a patent application is novel, it examines the prior art base (ie, the public domain). Some confusion is caused by different legal definitions of prior art. For example, under US patent law prior art must be in a printed publication in the US or a foreign country. However, the European patent system does not limit prior art solely to printed publications.[93]
Defensive disclosure refers to information and documentation made available to the public as prior art, in order to render any subsequent claims of invention or discovery ineligible for a patent. Indigenous peoples may find themselves in a difficult situation with regard to using this measure to protect their TEK. They often need secrecy to maintain the integrity of their knowledge systems and to observe their customary law. However, if they wish to use intellectual property law for profit-making objectives (to enable their communities to benefit, as well as governments and corporations), then they must keep their TEK out of the public domain. It is very difficult to prevent ‘leakage’, and much TEK is already in the public domain through academic and scientific publications. If TEK is used as the basis for a patent application by parties outside their nation or community, then the only viable form of protection may be defensive disclosure, used to place the information in the public domain.
Contracts are legally binding negotiated agreements between parties. Contracts can clarify, or extend existing policy and regulatory provisions. In this sense, they constitute what is called ‘private law making’. One of the real advantages of using contracts for Indigenous knowledge is the flexibility they offer, and their potential to reflect the real needs and aspirations of Indigenous peoples. However, this advantage can often be undermined by a lack of Indigenous peoples’ bargaining power, resources and negotiation skills. They can be used to entrench and support measures for access to biological resources and TEK, and equitable benefit-sharing, and set the terms and conditions for these kinds of arrangements.[94] Examples of the ways in which contracts that have been used, and which have applicability to protecting TEK are:
Contracts will continue to play a crucial role in the development of measures for protection, and sustainable use of traditional knowledge and practices, and to support Indigenous peoples’ rights and interests in biodiversity. Contracts developed in these contexts may be established either independently, or in association with other regulatory and standard setting processes. WIPO has established a contracts database: (http://www.wipo.org/globalissues/
databases/
databases/contracts/).
There have recently been some activities both internationally and in Australia that have highlighted the wider context, and the challenges involved in recognising the fundamental human rights, the specific Indigenous rights, and needs of Indigenous peoples when undertaking biodiversity related research, programs and projects. These activities include developing protocols, guidelines, and codes of ethics for research involving Indigenous peoples. The development of effective documents of these kinds is a critical step towards better ethical standards
The World Conservation Union (IUCN) Environmental Law Commission’s Specialist Group on Indigenous Peoples, and the Desert Knowledge Co-operative Research Centre (DK-CRC) in Australia, are both examples of organisations with an interest in activities that seek to explore better ways of recognising and protecting Indigenous peoples’ rights and interests in biodiversity and traditional knowledge.[96] Among the projects funded and supported by DK-CRC are some aimed at developing protocols and guidelines for recognition of Aboriginal peoples’ rights in their ‘intellectual property’ and TEK.
The research and academic sector in Australia is increasingly seeking to engage with Indigenous peoples for a very wide range of projects and purposes. It is especially critical to ensure sound ethical approaches in these research engagement processes. The current ethical protocols and approval processes in most universities in Australia are derived from the area of health research.[97] The many decades of experience in this area provide some useful guidance in general terms, but this has proved inadequate as a basis for developing ethical cross-cultural research relating to biodiversity and sustainable livelihoods for Indigenous peoples.
The Guidelines for Ethical Research in Indigenous Studies developed by the Australian Institute of Aboriginal and Torres Strait Islanders Studies (AIATSIS) are very useful.[98] These are based on several years of consultation with Indigenous communities and researchers by the peak Indigenous research body in Australia. However, these guidelines have not kept pace with contemporary developments in the area of Indigenous and environmental rights under the CBD, and the international and national standard setting processes relating to intellectual and cultural property. The most significant inadequacy of the guidelines, relate to their lack of scope to provide appropriate guidance and standards in regard to research partnerships with Indigenous peoples for access and benefit sharing, and potential commercial benefits that may result from such arrangements. Any inadequacies in these guidelines are highlighted in the context of an increasing focus internationally on the development of measures for access and benefit-sharing (particularly in relation to genetic resources), recognition of TEK, and the advent of activities such as bioprospecting.
Taking these developments into account, the Research Office and the Vice Chancellor at Macquarie University were concerned that the general ethics approval process for university research had also failed to keep pace with them. As a consequence, they provided funding for a one-year project entitled Development of Ethical Approaches and Protocols for Cross-Cultural Biodiversity Research and Benefit Sharing with Indigenous Peoples (2004-2005). At the same time, colleagues at Curtin University in Western Australia were facing similar issues in their longer term research project (funded by the Desert Knowledge Cooperative Research Centre, or DK-CRC) known as the Plants for People, which involves Aboriginal peoples in Western Australia, South Australia and the Northern Territory.
The DK-CRC is a collaborative research program with 28 partners including universities, NGO's, Indigenous organisations, and government. It commenced its research program in 2002 ($90 million research over 7 years). A Management Board was established with 50% Aboriginal membership. An objective of DK-CRC programs is to ensure that they specifically benefit Indigenous futures and livelihoods. This has been a difficult undertaking at a time when the peak national elected Indigenous organisation, the Aboriginal and Torres Strait Islander Commission (ATSIC) has been dissolved, and its roles and functions have been ‘mainstreamed’ across the whole of the government. The mandate of the DK-CRC is to promote, support, and develop sustainable livelihoods for desert communities. This is especially important for Indigenous people. Aboriginal Australians own nearly half of the land in the central desert region of the Northern Territory in Australia, but many live in remote settlements of less than fifty people. Sustainable development opportunities are very limited in these arid lands, and many relate to servicing the communities, and to developing sound strategies for environmental management. Aboriginal communities and organisations have usually been operating in crisis mode with little opportunity to develop long term policy and research options, and sustainable Indigenous livelihoods based on them.
The DK-CRC has developed a draft Indigenous Intellectual Property Protocol, intended to guide research projects across the whole organisation. This protocol will be subject to review as projects and research develops. Some DK-CRC funded projects will, it is hoped, further inform this Intellectual Property Protocol. These have included a project conducted by the Central Land Council to develop a set of protocols and guidelines for protecting Aboriginal Traditional Owners’ rights and interests in their traditional knowledge and intellectual property, within the permit system that regulates activities on their lands under the Aboriginal Land Rights Act 1976. (see below, in Appendix). Another such project is a Scoping Project on Indigenous Knowledge that was conducted through Charles Darwin University.
These projects have been informed, at least implicitly, by a discourse associated with the CBD, which has revealed the inextricable links between cultural biodiversity and natural ecosystems.[99] It has also become clear that participatory and ethical engagement with Indigenous and local communities, prior informed consent, issues related to access to resources and knowledge, and equitable benefit-sharing are interrelated processes. These interconnections have been well identified by the collective known as the Crucible Group – a group of like-minded people concerned about the impacts that decisions made about plant genetic resources might have on food security, development, and local communities. [100] This group argued that the underlying rationale for focussing on Indigenous and local knowledge is based on several factors, including:
The literature has often distorted this reality by focussing on one or a few of these processes in isolation. The development of protocols should be directed towards establishing a relationship embodying:
This approach is also evident in the NHMRC Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research 2003 with additional emphasis on the traditions of spirit and integrity, survival and protection and responsibility.[103]
Research on ethics and protocols in participation and engagement with Indigenous peoples is of increasing global, regional and national importance. The Indigenous rights provisions in the CBD have provided a catalyst for research and action along with the programs of international organisations such as the WIPO, the United Nations Conference on Trade and Development (UNCTAD), and the World Trade Organisation. Within these organisations, areas of concern include the protection of TEK, international trade laws, and Indigenous and local peoples’ issues in the context of the rapid growth of new forms of intellectual property rights (TRIPS), issues related to prior informed consent, and equitable benefit sharing (particularly through contracts and national legislative frameworks) relating to the access, use and development of biological and genetic resources.
This General Research Protocol provides general guidance for proposals to conduct research on Aboriginal lands. It should also serve as a guide for those wishing to visit and/or work in Aboriginal communities and areas in the Central Land Council region.
This Protocol is designed to be consistent with the standards set out in the AIATSIS Guidelines for Ethical Research in Indigenous Studies. (This Protocol is supplemented by several more specific Protocols related to environmental and anthropological research)
1.1 All applications for research activities must have obtained, through the CLC, the prior informed consent of the Traditional Owners.
1.2 To assist the CLC in seeking prior informed consent from Traditional Owners, applicants who wish to obtain a permit to enter Aboriginal land in order to conduct research should provide to the CLC full details of the proposed project, as detailed in the attached application.
2 PARTICIPATION BY ABORIGINAL PEOPLE
2.1 All applications should acknowledge Aboriginal peoples’ customary laws, practices and local expertise. Aboriginal people should be provided with opportunities to participate at all stages of project, where appropriate.
2.2 Aboriginal participation may be facilitated by utilising existing Aboriginal organisations. For major projects, the establishment of an Aboriginal steering committee should also be considered.
2.3 The employment and training of Aboriginal people should be considered in all aspects of the work, including as guides, interpreters, and informants, as well as in the collection and analysis of research data.
3.1 Aboriginal people have the right to expect that research conducted on their land, and in their communities, will be of benefit to them. One way of ensuring this is by designing projects in conjunction with Aboriginal people.
3.2 Aboriginal people working on the project must be paid at fair and equitable rates.
3.3 In ensuring that the project benefits Aboriginal people, applicants should consider the range of ways in which such benefits may be provided (please see Introduction). These may include both monetary, and non-monetary benefits such as skills and training, and capacity building for communities. Project budgets should include provisions for any financial and other benefits.
3.4 Aboriginal people value opportunities to visit country. In order to generate goodwill, you may wish to consider including extended family on any trips onto country.
4.1 The term ‘Aboriginal cultural and intellectual property’ is a general term which includes all aspects of Aboriginal peoples’ cultural products and expressions, as well as their intangible cultural knowledge. Aboriginal cultural and intellectual property means the totality of cultural heritage of Aboriginal people, including, without limitation, their intangible heritage (such as songs, dances, stories, ecological and cultural knowledge), and cultural property, which includes Aboriginal human remains, artifacts, and any other tangible cultural objects.
4.2 Applications for research projects must demonstrate a commitment to respect and uphold the rights of Aboriginal people, under their Traditional Law, to full ownership and control over any Indigenous cultural and intellectual property that is in existence prior to the conduct of the project. This includes rights in Indigenous cultural knowledge.
4.3 Applications must demonstrate a commitment to negotiating fully and equitably with Aboriginal people who are involved in the research, and in protecting the rights and interests of Aboriginal people in any intellectual property that results from the research.
5.1 Research proposals should have obtained clearance from an appropriate ethics committee before commencing the project. Applicants are encouraged to discuss their project with the Central Australian Ethics Committee.
6 METHODOLOGY
6.1.1 Applications shall provide full details of the methodology to be used in the proposed research work. This should include information about how the applicant will manage outcomes and data from the project in accordance with Aboriginal peoples’ rights and interests. For example, how will the project provide for Aboriginal community retention of research data.
…
This Protocol applies to proposals for environment, conservation and biodiversity related activities. It applies to the survey, screening and/or collection of any plant or animal matter, parts and/or derivatives of these, germplasm and other biological and genetic materials, and knowledge and practices relating to these.
The Protocol has regard to relevant international, national, regional, state, territory and local laws and standards. It is consistent with Australia’s obligations under the United Nations Convention on Biological Diversity, the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (especially the Regulations for Access to Biological Resources), and relevant Northern Territory laws. It is also informed by standards set out in the AIATSIS Guidelines for Ethical Research in Aboriginal Studies, and the Australian Science, Technology and Engineering Council (ASTEC) – National Principles and Guidelines for the Ethical Conduct of Research in Protected and Environmentally Sensitive Areas.
1 PRIOR INFORMED CONSENT
1.1 All applications for environment and conservation activities must have obtained, through the CLC, the prior informed consent of the Traditional Owners.
1.2 To assist the CLC in seeking the prior informed consent of Traditional Owners, applicants should provide full details of the proposed project, as detailed in the attached application.
2 PARTICIPATION BY ABORIGINAL PEOPLE
2.1 All applications should acknowledge Aboriginal peoples’ customary laws, practices and the expertise that Aboriginal people have in relation to biological resources. Aboriginal people should be provided with opportunities to participate at all stages of project, where appropriate.
2.2 Aboriginal participation may be facilitated by utilising existing Aboriginal organisations. For major projects, the establishment of an Aboriginal steering committee should also be considered.
2.3 The employment and training of Aboriginal people should be considered in all aspects of the environment and conservation work, including as advisors, rangers, botanists, guides, interpreters, and informants, as well as in the collection and analysis of research data.
3 BENEFITS FOR TRADITIONAL OWNERS AND OTHER ABORIGINAL PEOPLE
3.1 Aboriginal people have the right to expect that research conducted on their land, and in their communities, will be of benefit to them. One way of ensuring this is by designing projects in conjunction with Aboriginal people.
3.2 Aboriginal people working on the project must be paid at fair and equitable rates.
3.3 In ensuring that the project benefits Aboriginal people, applicants should consider the range of ways in which such benefits may be provided (please see Introduction). These may include both monetary, and non-monetary benefits such as skills and training, and capacity building for communities. Project budgets should include provisions for any financial and other benefits.
3.4 Applicants are encouraged to develop, in negotiation with Aboriginal communities, access and benefit sharing agreements that:
a) Recognise Aboriginal peoples’ rights in their traditional knowledge relating to biological and genetic resources;
b) Are based on the principles of prior informed consent; and
c) Are negotiated on a basis of mutually agreed terms and conditions.
3.4 Aboriginal people value opportunities to visit country. In order to generate goodwill, you may wish to consider including extended family on any trips onto country.
4 ABORIGINAL CULTURAL AND INTELLECTUAL PROPERTY RIGHTS
4.1 The term ‘Aboriginal cultural and intellectual property’ is a general term which includes all aspects of Aboriginal peoples’ cultural products and expressions, as well as their intangible cultural knowledge. Aboriginal cultural and intellectual property means the totality of cultural heritage of Aboriginal people, including, without limitation, their intangible heritage (such as songs, dances, stories, ecological and cultural knowledge), and cultural property, which includes Aboriginal human remains, artifacts, and any other tangible cultural objects.
4.2 Applications for environment and conservation projects must demonstrate a commitment to respect and uphold the rights of Aboriginal people, under Aboriginal Traditional Laws, to full ownership and control over Aboriginal cultural and intellectual property that is in existence prior to the conduct of the project.
4.3 Applications must demonstrate a commitment to negotiating fully and equitably with Traditional Owners and other Aboriginal people who are involved in the research, and in protecting the rights and interests of Traditional Owners and other Aboriginal people in any intellectual property that results from the research.
5 ETHICS APPROVAL
5.1 Research proposals should have obtained clearance from an appropriate ethics committee before commencing the project. Applicants are encouraged to discuss their project with the Central Australian Ethics Committee.
6 METHODOLOGY
6.1 Applications shall provide full details of the methodology to be used in the proposed research work. This should include information about how the applicant will manage outcomes and data from the project in accordance with Aboriginal peoples’ rights and interests. For example, will the project provide for Aboriginal community retention of research data.
7 PHOTOGRAPHY, FILM, RECORDING AND MEDIA
8 PUBLICATION AND OTHER DISSEMINATION OF RESEARCH OUTCOMES
8.1 Applicants should uphold the rights and interests of Aboriginal people regarding control over publication and other dissemination of research outcomes. Applications to conduct research activities on Aboriginal lands must provide full details in their application of any plans for publication and dissemination, where known. This should include details of any collaborative approaches to publication with Aboriginal people.
8.2 For any ethnobotanical publications and/or reports, applicants should provide for either:
a) Aboriginal people to retain copyright control over all material produced or collected; or
b) To negotiate with Aboriginal people to use, through license, all or some material produced or collected during, and resulting from the project.
8.3 Copies of all research results and outputs shall be made available, in an appropriately accessible form, to Traditional Owners and other Aboriginal people upon request.
9 PROFESSIONAL CREDENTIALS
…
These protocols are attached to the research permit process administered by Central Land Council. CLC is an Aboriginal body represented Aboriginal peoples from the Central Desert of the Northern territory. The following Guidelines for Evaluating Permit Applications provide some practical suggestions about Indigenous perspectives on ethical research:
1 Project Priority
1.1 What degree of urgency does the proposed project or activity have to the CLC, to Traditional Owners, and to other Aboriginal people?
1.2 In what, if any, ways are the proposed results/outcomes from the project or activity likely to enhance the capacity of Traditional Owners and other Aboriginal people to sustainably manage their lands and resources?
1.3 How is the proposed project and/or activity likely to strengthen Aboriginal peoples’ capacity to exercise their rights in cultural and intellectual property, traditional knowledge, biological resources and environmental conservation and management?
1.4 In what, if any, ways does the proposed project/activity have the potential to enhance Aboriginal peoples’ capacity to protect their sacred sites and areas, other significant sites, places and areas, cultural objects, and other elements of their cultural heritage?
1.5 What, if any regional, national, and/or international implications and/or relevance does the proposed activity/project have?
2 Benefits To Aboriginal People
2.1 Have Traditional Owners and other Aboriginal people indicated a wish to participate in the project?
2.2 If this is the case, in what ways does the project demonstrate a commitment to ensuring their full and equal participation throughout the duration of the project?
2.3 What actual benefits will accrue to Traditional Owners and other Aboriginal people during the course of the project (e.g capacity building initiatives, skills and training, wages paid for expertise, or research that accords with community needs and priorities).
3 Project Management
3.1 What strategies are in place for continuous monitoring, reporting, and financial management of the proposed project/activity? Is this necessary?
3.2 How does the proposed project intend to make reports on progress available and accessible to Traditional Owners and other Aboriginal people (e.g., by means of a Plain Language report; other formats?).
4 Project Outcomes
4.1 What strategies are in place for full reporting of project results and outcomes?
4.2 What strategies are in place for full disclosure of distribution, promotion and dissemination of project results?
[*] Professor of Desert Knowledge, Charles Darwin University, Australia and Professor of Law, Centre for Environmental Law, Macquarie University, Australia. The research from this paper is drawn from a Project funded by a Vice Chancellors Development Grant (2005-2006) at Macquarie University, Sydney, Australia: ‘Development of Ethical Approaches and Protocols for Cross-Cultural Biodiversity Research and Benefit Sharing with Indigenous Peoples’.
[**] An independent researcher and consultant specialising in Indigenous rights in traditional knowledge and biodiversity.
[1] Conference of the Parties to the Convention on Biological Diversity, Access and Benefit-Sharing as Related to Genetic Resources, Bonn Guidelines on Access to genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation, UN Environment Programme, 6th meeting, UN Doc UNEP/CBD/COP/6/24 (2002); See also Michael Jeffery ‘Bioprospecting: Access to Genetic Resources and Benefit-Sharing under the Convention on Biodiversity and the Bonn Guidelines’ (2003), v. 6(2) Singapore Journal of International, 747-808
[2] National Legislation of Costa Rica, Biodiversity Law, Article 82 Ley No 7788:1998. See also Charles V Barber et al, ‘Developing and Implementing National Measures for Genetic Resources Access Regulation and Benefit-Sharing’ in Sarah A Laird (ed), Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (2002) 393-6.
[3] Henrietta Fourmile, ‘Using Prior Informed Consent Procedures under the Convention on Biological Diversity to Protect Indigenous Traditional Ecological Knowledge and Natural Resource Rights’ (1998) 16(4) Indigenous Law Bulletin 15.
[4] Ibid 16.
[5] Articles 16 to 23.
[6] Section 8.
[7] Section 8(1)(a)
[8] Section 10.
[9] UN ESOSOC (1986) ‘Study of the Problem of Discrimination Against Indigenous Populations, United Nations Economic and Social Council’, E/CN.4Sub.2/1986/7 and Add.1-4.
[10] D A Posey, ‘Introduction: Culture and Nature – The Inextricable Link’ (1999) Cultural and Spiritual Values of Biodiversity 4.
[11] See Michael Davis, ‘Bridging the Gap, or Crossing a Bridge?: Indigenous Knowledge and the Language of Law and Policy’ in Fikret Berkes et al, (eds), Bridging Scales and Knowledge Systems: Linking Global Science and Local Knowledge in Assessments (2006 forthcoming).
[12] S A Hansen and VanFleet, ‘Traditional ecological knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Ecological Knowledge Holders in Protecting their Intellectual Property and Maintaining Biological Diversity’ (2003) AAAS 3.
[13] Despite the comprehensive report on recognition of Aboriginal customary laws in Australia, released in 1986, the debate about legal pluralism and customary law recognition has not advanced to a great extent. See Australian Law Reform Commission, Report No 31, ‘The Recognition of Aboriginal Customary Laws’ (1986); also James Crawford, ‘Legal Pluralism and the Indigenous Peoples of Australia’ in Oliver Mendelsohn and Upendra Baxi (eds), The Rights of Subordinated Peoples (1994) 178-220. For a useful discussion on the relationship between legal pluralism and natural resource property rights, see Ruth S Meinzen-Dick and Rajendra Pradhan, ‘Legal Pluralism and Dynamic Property Rights’ (CAPRI Working Paper No 22, CGIAR Systemwide Program on Collective Action and Property Rights, International Food Policy Research Institute, Washington, DC, January 2002).
[14] J C Altman, ‘Sustainable Development Options on Aboriginal Land: The Hybrid Economy in the Twenty-First Century’ (Discussion Paper No 226. Centre for Aboriginal Economic Policy, Canberra, 2001) 5.
[15] A useful paper exploring the important relationship between cultural diversity and biological diversity is Harriet Ketley, ‘Cultural Diversity Versus Biodiversity’ (1994) 16 Adelaide Law Review 99-283.
[16] Martha Johnson (ed), Lore: Capturing Traditional Environmental Knowledge (1992) 4.
[17] D A Posey, ‘Introduction: Culture and Nature – The Inextricable Link’ (1999) Cultural and Spiritual Values of Biodiversity 7.
[18] Declaration of the United Nations Conference on the Human Environment Stockholm, 1972, Principle 2.
[19] Cocoyoc Declaration 1974.
[20] Declaration of San Jose UNESCO, 1981, para 3.
[21] Declaration of San Jose UNESCO, 1981.
[22] http://www.unmillenniumproject.org/reports/index.htm
[23] Donna Craig, ‘Biological resources, IPRs and International Human Rights: Impacts on Indigenous and Local Communities’ in Burton Ong (ed), Intellectual Property and Biological Resources (2004) ch 10, 352-393; Michael Davis, ‘Law, Anthropology, and the Recognition of Indigenous Cultural Systems’ in René Kuppe and Richard Potz (eds), Law and Anthropology: International Yearbook for Legal Anthropology 11 (2001).
[24] Meeting of Experts on Human Rights and Environment – Geneva, 16-18 May, 1994.
[25] Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report, 1993, 91.
[26] CERD/C/54/Misc.40/Rev 2, 18 March 1999, para 6.
[27] Paras 7 and 8.
[28] Para 9.
[29] Social Justice Report No 2/2003, 188.
[30] CERD Committee General Recommendation XXII – Indigenous Peoples, UN Doc CERD/C/51/Misc.13/Rev 4, 18 August 1997, para 4, cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report No 2/2003, 188.
[31] Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2002) 132-133.
[32] IWGIA, ‘Indigenous Poverty: an Issue of Rights and Needs’ (International Work Group for Indigenous Affairs, 1/2003) 46.
[33] Ibid.
[34] Ibid 38.
[35] Ibid.
[36] Ibid 46.
[37] ‘Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research’, Endorsed by Council at its 148th Session on 5 June 2003, 4.
[38] Larissa Behrendt, ‘The Protection of Indigenous Rights: Contemporary Canadian Comparisons’ (Research Paper No 27, Parliamentary Library, Canberra, 1999-2000) 7.
[39] Ibid 8.
[40] IUCN Environmental Law Centre, ‘The Convention on Biological Diversity: An Explanatory Guide’, Bonn, IUCN Biodiversity Program, 1994, 48.
[41] Ibid 93.
[42] For a discussion on the importance of better understanding Indigenous concepts, see for example Michael Davis, ‘Bridging the Gap, or Crossing a Bridge? Indigenous Knowledge and the Language of Law and Policy’ in Fikret Berkes, Doris Capistrano, Walt Reid, and Tom Wilbanks (eds), Bridging Scales and Knowledge Systems: Linking Global Science and Local Knowledge in Assessments (2006 forthcoming).
[43] Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity, ‘Conference of the Parties’, UNEP/CBD/COP/6/20, Paragraph 34. <http://www.biodiv.org/programmes/socio-eco/traditional/decisions.asp> last accessed 18 November 2003.
[44] Articles 8(j) and 15.
[45] See Lyle Glowka et al, ‘A Guide to the Convention on Biological Diversity’ (IUCN Environmental Policy and Law Paper No 30, Gland, Switzerland, and Cambridge, England, IUCN, 1994) 48-49.
[46] Article 15(4).
[47] Article 15(5).
[48] Article 15(7).
[49] Article 8(j).
[50] Sarah A Laird, ‘Introduction: Equitable Partnerships in Practice’ in Laird, above n 2, xxix-xxx.
[51] Ibid xxii-xxxvi.
[52] Ibid xxiii. Note that Laird characterises ‘best practice’ in this context as ‘standards of practice that are widely regarded by those in the field as representing the highest levels of conduct, and the practical implementation of core underlying principles such as conservation of biodiversity, sustainable use, and equitable benefit-sharing’, ibid xxiv.
[53] Sarah A Laird and Flavia Noejovich, ‘Building Equitable Research Relationships with Indigenous Peoples and Local Communities: Prior Informed Consent and Research Agreements’ in Laird, above n 2, 185.
[54] Ibid 189-90.
[55] Ibid 192.
[56] See for example Walter V Reid et al, Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (1993); Kerry ten Kate and Sarah A Laird, The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing (1999); Sarah A Laird (ed), Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (2002).
[57] Brendan Tobin, ‘Biodiversity Prospecting Contracts: the Search for Equitable Agreements’ in Laird, above n 2, 287-309.
[58] Articles 15 and 16.
[59] Article 8(j).
[60] Conference of the Parties to the Convention on Biological Diversity, Access and Benefit-Sharing as Related to Genetic Resources, Bonn Guidelines on Access to genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation, UN Environment Programme, 6th meeting, UN Doc UNEP/CBD/COP/6/24 (2002); See also Jeffery, above n 1, 786.
[61] Parshuram Tamang, ‘An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices’ (paper presented at the Workshop on Free, Prior and Informed Consent and Indigenous Peoples, organised by the Secretariat of UNPFII, UN Headquarter, New York, USA, 17-19 January 2005).
[62] See for example Marcus Colchester, ‘Sharing Power: Dams, Indigenous Peoples and Ethnic Minorities’ (paper prepared for the World Commission on Dams (WCD), Cape Town, Secretariat of the World Commission on Dams, November 2000).
[63] www.wipo.int/tk/en/tk/index.html see WIPO Publication No 920(E).
[64] Ibid 16-31.
[65] UNESCO Convention on Intangible Cultural Heritage, Article 2(2).
[66] Paul Kuruk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of the Intangible Cultural Heritage’ 1(1) Macquarie Journal of International and Comparative Environmental Law 111-135.
[67] Ibid.
[68] http://www.earthcall.org/en/.
[69] General Agreement on Tariffs and Trade, 30 October 1947, 61 Stat A3, 55 UNTS 187.
[70] See for example Simon Walker, ‘The TRIPS Agreement, Sustainable Development and the Public Interest’ (IUCN Policy and Law Paper No 41, IUCN and CIEL, IUCN publication services, 2001) xii.
[71] Article 1.2 of the TRIPS Agreement states that ‘for the purposes of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II’.
[72] Walker, above n 69, xi.
[73] Ibid.
[74] Ibid x.
[75] Michael Davis, ‘Bridging the Gap, or Crossing a Bridge?: Indigenous Knowledge and the Language of Law and Policy’ in Fikret Berkes et al, (eds), Bridging Scales and Knowledge Systems: Linking Global Science and Local Knowledge in Assessments (2006 forthcoming).
[76] Erica-Irene Daes, ‘Supplementary Report of the Special Rapporteur on the Protection of Heritage of Indigenous Peoples’, UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 48th Session, E/CN.4/Sub.2/1996/22, 5.
[77] Terri Janke, Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (1998) 47-48.
[78] F Yamin and D Posey, ‘Indigenous peoples, biotechnology and intellectual property rights’ (1993) 2(2) Review of European Community and International Environmental Law 143. Michael Davis, ‘Indigenous Peoples and Intellectual Property Rights’ (Research Paper No 20 (1996-97), Information and Research Services, Department of the Parliamentary Library, Canberra, June 1997); Michael Davis, Biological Diversity and Indigenous Knowledge (Research Paper No 17 (1997-98) Information and Research Services, Department of the Parliamentary Library, Canberra, June 1998); Michael Davis, ‘Indigenous Rights in Traditional Knowledge and Biological Diversity: Approaches to Protection’ (1999) 4(4) Australian Indigenous Law Reporter 1-32.
[79] Ibid.
[80] United Nations Conference, ‘Environment and Development: Convention on Biological Diversity’, 5 June 1992, UNEP/Bioprospecting.Div./N7BINC5/4, reprinted in 31 ILM 818 (1992) (entered into force 29 December 1993).
[81] Darrell A Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (1996); Davis, above n 76, 1-32.
[82] Hansen and VanFleet, above n 11.
[83] Hansen and VanFleet, above n 11, 9.
[84] Hansen and VanFleet, above n 11, 12-13.
[85] Hansen and VanFleet, above n 11, 15.
[86] Hansen and VanFleet, above n 11, 16.
[87] UNU-IAS, The Role of Registers and Databases in the Protection of Traditional Knowledge: A Comparative Analysis (2003).
[88] Hansen and VanFleet, above n 11, 18.
[89] Hansen and VanFleet, above n 11, 18, citing World Trade Organization Report, ‘Trading into the Future: The Introduction to the WTO, Intellectual Property Protection and Enforcement’, Geneva, WTO, August 2002.
[90] Trademark Act 1995, s 17.
[91] Hansen and VanFleet, above n 11, 20-21.
[92] Hansen and VanFleet, above, n 11, 21.
[93] Hansen and VanFleet, above n 11, 24.
[94] Hansen and VanFleet, above n 11, 30.
[95] Ibid.
[96] For the IUCN see http://www.iucn.org/themes/law/cel03A.html; for the Desert Knowledge CRC, see www.desertknowledge.com.au.
[97] See the ‘Review of the National Statement on Ethical Conduct in Research Involving Humans- First Consultation Draft’, National Health and Medical Research Council Australian Research Council Australian Vice Chancellor's Committee, December 2004; Also of use is the ‘Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research’, Endorsed by Council at its 148th Session on 5 June 2003.
[98] AIATSIS, ‘Guidelines for Ethical Research in Indigenous Studies’ (2000).
[99] See for example Darrell Addison Posey, ‘Introduction: Culture and Nature – The Inextricable Link’ in Posey (ed), The Cultural and Spiritual Values of Biodiversity (1999), 3-18.
[100] The Crucible II Group, ‘Seeding Solutions- Options for National Laws Governing Access to and Control Over Genetic Resources and Biological Innovations’, Ottawa, Rome, and Uppsala, International Development Research Centre, International Plant Genetic Research Institute, the International Plant Genetic Resources Institute, and the Dag Hammarskjold Foundation (2001) especially 45-55.
[101] Ibid 36.
[102] See Alan R Emery, ‘Guidelines: Integrating Indigenous Knowledge in Project Planning and Implementation’ (Worksheets Checklist of Best Practices, International Labor Organization, The World Bank, The Canadian International Development Agency, and KIVU Nature Inc, Washington, 2000) 36.
[103] ‘Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research’, Endorsed by Council at its 148th Session on 5 June 2003, 8.
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