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Wright, Evana; Cahill, Ann; Stoianoff, Natalie --- "Australia and Indigenous traditional knowledge" [2017] UTSLRS 6; (2017) Indigenous knowledge forum: comparative systems for recognising and protecting indigenous knowledge and culture (ed.) Natalie Stoianoff 39

Last Updated: 16 May 2017

Chapter 3: AUSTRALIA AND INDIGENOUS TRADITIONAL KNOWLEDGE

Evana Wright,[1] Ann Cahill[2] and Natalie P. Stoianoff[3]

There are numerous international instruments that recognise the rights of Indigenous peoples to protect their traditional knowledge.[4] However, it is the Convention on Biological Diversity 1992 (‘CBD’)[5] and the work emanating from the Conference of the Parties to that Convention that has produced the most traction in creating an awareness and desire to recognise these rights and pave the way forward in the development of legal frameworks for protection, access and benefit sharing. Most notably, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity (‘Nagoya Protocol’)[6] entered into force on 12 October 2014, 90 days following the deposit of the fiftieth instrument of ratification.[7] As a signatory, Australia has signalled its intent to be become a party and be bound by the obligations set out in the Nagoya Protocol.[8] As a result Australia will be required to establish checkpoints to collect information on the source of genetic resources, the use of such resources and the existence of mutually agreed terms between the user of the resource and Indigenous communities in order to ensure that any genetic resources and associated traditional knowledge used in Australia have been acquired legally.[9] Australia is in the process of determining how best to implement its obligations under the Nagoya Protocol. The Australian Federal Government has engaged in consultation to obtain feedback on the options available to implement the Nagoya Protocol in Australia[10] and the operation of the intellectual property system with regards to traditional knowledge.[11] However, at the time of writing, reports are yet to be released in relation to the outcomes of these consultations. This chapter will set out the current framework within Australia for protecting biological resources and associated traditional knowledge, discuss the challenges facing Australia and identify an option for consideration as Australia moves towards ratifying and implementing obligations under the Nagoya Protocol.

Australia in context

Australia is one of seventeen designated mega-diverse countries in the world, a group of countries responsible for over 70% of the world’s biodiversity[12] and Australia alone holds approximately 13% of the world’s biodiversity[13] with approximately 44,000 species of plants, 88 per cent of which are endemic to Australia.[14] This means that Australia is in a relatively unique position with regards to protecting and conserving biodiversity. As a party to the CBD and the International Treaty on Plant Genetic Resources for Food and Agriculture[15] (ITPGRFA) Australia has committed to protecting biodiversity in accordance with the provisions of those treaties. In addition to the obligations to conserve and promote the sustainable use of biological resources under the terms of the CBD and ITPGRFA, member countries are required to protect associated traditional knowledge.[16]

Indigenous Australians[17] have and continue to engage in practices that support and progress the goal of conserving biological diversity. In fact, traditional knowledge systems can play a vital role in achieving these outcomes.[18] These knowledge systems are dynamic and continually evolving in order to respond to a changing environment[19] and reflect the cultures and values of Indigenous communities across Australia.[20] These communities are diverse and each community may hold distinct knowledge that may or may not have been shared with others. However there is widespread concern that this knowledge is being lost from Indigenous communities or misappropriated and exploited.[21] Traditional knowledge is of significant spiritual, cultural and economic value both to Indigenous Australians and society at large.[22] There is evidence to suggest that traditional medicines are relied on by up to 80% of the world’s population for primary health care[23] and that approximately three quarters of the plants used in prescription medicine were originally used in traditional medicine.[24] Traditional knowledge is therefore viewed as an opportunity for cost-savings for companies engaging in research and development of pharmaceutical or agricultural products.[25] Consequently, there are cases where traditional knowledge has been appropriated and exploited by these companies without the prior informed consent of the Indigenous communities involved or the equitable sharing of benefits arising from use of such knowledge. There are numerous examples of such activities in Australia including the attempted patenting of an extract from Kakadu plum by Mary Kay Inc. [26] and the exploitation of smokebush by the US National Cancer Institute and Amrad.[27] These activities are not only offensive to many Indigenous people but they also perpetuate the dispossession of Indigenous peoples and their communities potentially preventing their development of and participation in industries based on their traditional knowledge.[28] Acting to protect traditional knowledge not only benefits Indigenous Australians but will also assist Australia in meeting its obligations with respect to conservation and sustainable use of biological resources and may also contribute to the long-term economic security of the nation.[29]

Traditional Knowledge and Biodiversity

While early attempts in Australia to protect traditional knowledge focused on the concepts of Indigenous culture and folklore[30] subsequent efforts have tied the protection of traditional knowledge to conservation and biodiversity. In 1992, the National Strategy for Ecologically Sustainable Development[31] was released recognizing the importance of encouraging greater recognition of Aboriginal and Torres Strait Islander peoples’ values, traditional knowledge and resource management practices relevant to ecologically sustainable development.[32] Following the ratification of the CBD by Australia in 1993, the National Strategy for the Conservation of Australia’s Biological Diversity (‘National Strategy’)[33] was prepared by the Australian and New Zealand Environment and Conservation Council and released by the Commonwealth Department of the Environment, Sport and Territories (as it was then known) in 1996. The goal of the National Strategy was to protect biological diversity and maintain ecological processes and systems.[34] This framework recognised the importance of traditional knowledge to the conservation of Australia’s biological diversity[35] and resolved to ensure that any use of traditional biological knowledge in the scientific, commercial or public domains proceeded with the cooperation and control of the traditional owners and that any use resulted in ‘social and economic benefits to the traditional owners.’[36] The National Strategy was reviewed in 2001[37] with an assessment made as to the progress against each of the strategy objectives. Critically, the review found that the objective relating to recognition of the importance of traditional knowledge to the conservation of Australia’s biological diversity had not been achieved and that while some progress had been made there remained a need to ensure that traditional knowledge was preserved and respected.[38]

The National Strategy has since been replaced by ‘Australia’s Biodiversity Conservation Strategy 2010-2030’[39] prepared by the National Biodiversity Strategy Review Task Group convened under the Natural Resource Management Ministerial Council[40] and released in 2010. This Strategy recognises the significant role Indigenous Australians play in the conservation of biodiversity in Australia.[41] It aims to increase Indigenous engagement and transfer of knowledge to ‘not only lead to improved opportunities for Indigenous peoples but also to improved outcomes for biodiversity.’[42] The stated outcomes for increasing Indigenous engagement include an increase in the employment and participation of Indigenous Australians in conservation of biodiversity, an increase in the use of Indigenous knowledge in decision-making and an increase in the land managed by Indigenous peoples for the purpose of biodiversity conservation.[43] In order to achieve these outcomes, the Strategy targets a 25% increase in the employment and participation of Indigenous peoples in biodiversity conservation.[44]

Current Situation in Australia

Commonwealth, State and Territory legislation governs the use and protection of biological resources and associated traditional knowledge in Australia. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) provides for an access regime relating to biological resources in Commonwealth areas[45] and is one of the mechanisms by which Australia has implemented its obligations under the CBD as at the time of writing. The key provisions relating to access to biological resources in Commonwealth areas can be found in section 301 of the EPBC Act and Part 8A of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth). Section 301 provides:

‘(1) The regulations may provide for the control of access to biological resources in Commonwealth areas.

(2) Without limiting subsection (1), the regulations may contain provisions about all or any of the following:

(a) the equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;

(b) the facilitation of access to such resources;

(c) the right to deny access to such resources;

(d) the granting of access to such resources and the terms and conditions of such access.’

Regulation 8A.01 provides the objectives of the Regulations and states:

‘For section 301 of the Act, the purpose of this Part is to provide for the control of access to biological resources in Commonwealth areas to which this Part applies by:

(a) promoting the conservation of biological resources in those Commonwealth areas, including the ecologically sustainable use of those biological resources; and

(b) ensuring the equitable sharing of the benefits arising from the use of biological resources in those Commonwealth areas; and

(c) recognising the special knowledge held by indigenous persons about biological resources; and

(d) establishing an access regime designed to provide certainty, and minimise administrative cost, for people seeking access to biological resources; and

(e) seeking to ensure that the social, economic and environmental benefits arising from the use of biological resources in those Commonwealth areas accrue to Australia; and

(f) contributing to a nationally consistent approach to access to Australia’s biological resources.’

The regulations then go on to set out specific requirements with regards to access to biological resources and associated traditional knowledge. Access to biological resources in Commonwealth areas requires a permit[46] and where access is for commercial or potential commercial purposes the applicant must enter into a benefit sharing agreement with the relevant access provider or providers.[47] Such benefit sharing agreements are required to provide for reasonable benefit sharing arrangements including protection for and recognition of ‘indigenous people’s knowledge’[48] and the agreement must include statements regarding the use and source of Indigenous people’s knowledge.[49] They must also specify the benefits to be provided or commitments given in return for the use of such Indigenous people’s knowledge ‘of the access provider, or other group of indigenous persons’.[50] The access provider must provide informed consent to the benefit sharing agreement where the relevant biological resources are in an area that is Indigenous people’s land.[51] The Minister, in considering whether an access provider has given informed consent, must consider whether the access provider had adequate knowledge of the regulations and was able to engage in reasonable negotiations; whether the access provider was given enough time to consider the application, consult with relevant people including traditional owners and negotiate the terms of the benefit-sharing agreement; whether the views of the land council or representative body have been sought (where relevant) and whether the access provider has received independent legal advice.[52] In this case, the access provider is the owner of the land (which may include the traditional owners of the land through a land council) or native title holder and focusses on access to the tangible biological resource. Access to the intangible Indigenous people’s knowledge does not factor into the informed consent requirement of regulation 8A.10, rather it is only relevant in demonstrating that benefit sharing arrangements have been put in place in relation to that knowledge.[53] This model does not take into account the diverse ways in which traditional knowledge is held within Indigenous communities or the way decisions are made with regards to sharing traditional knowledge. The Department of Environment has provided model access and benefit-sharing agreements with details relating to the use of Indigenous people’s knowledge to be set out by the parties in a schedule to the agreement.[54]

Where access to biological resources in Commonwealth areas is for non-commercial purposes, the applicant is required to obtain written permission from the access provider[55] and submit with the application a statutory declaration stating that the applicant does not intend to use the biological resources for commercial purposes. The applicant must also give undertakings to: provide written reports of research results; offer a taxonomic duplicate of each sample to an Australian public institution that is a repository of such specimens; not give any samples to any person (other than the taxonomic repository) without the consent of the access provider and not carry out or allow others to carry out research and development for commercial purposes unless a benefit-sharing agreement has been entered into with the access provider.[56]

The Department of Environment publishes a record of permits granted and between October 2006 and December 2015, 275 permits were issued under the EPBC Act with only three of these for commercial purposes.[57] According to data published in 2010, seven access and benefit sharing agreements, reflecting the terms set out in the model agreements, have been completed for commercial research with another three under consideration.[58]

In addition to Commonwealth legislation, State and Territory legislation regulates land management and conservation within the State or Territory’s boundaries. [59] In 2002, the States and Territories of Australia endorsed the general principles set out in the ‘Nationally Consistent Approach for Access to and the Utilisation of Australia’s Native Genetic and Biochemical Resources’ (the ‘Nationally Consistent Approach’).[60] This document confirmed that the Commonwealth, State and Territory Governments of Australia have ‘committed themselves to implementing the National Strategy for the Conservation of Australia’s Biological Diversity (the National Strategy) as a matter of urgency’ and that the nationally consistent approach is intended to make a significant contribution to achieving Objective 1.8.2 of the National Strategy relating to the use and benefits of traditional biological knowledge (as referenced above). The Nationally Consistent Approach provides common elements that are to be taken into account, ‘as far as is practical and appropriate’, when developing access and benefit-sharing regimes in Australia.[61]

The approach of the Australian States and Territories has differed widely with some implementing legislation dealing specifically with access to biological resources within their jurisdiction whereas others have released policy documents or guidelines. The State of Queensland implemented legislation in 2004 governing access to and use of biological resources on State land or Queensland waters. Section 3(1) of the Biodiscovery Act 2004 (Qld) sets out the purposes of the Act as follows:

“(a) to facilitate access by biodiscovery entities to minimal quantities of native biological resources on or in State land or Queensland waters (State native biological resources) for biodiscovery; and

(b) to encourage the development, in the State, of value added biodiscovery; and

(c) to ensure the State, for the benefit of all persons in the State, obtains a fair and equitable share in the benefits of biodiscovery; and

(d) to ensure biodisovery enhances knowledge of the State’s biological diversity, promoting conservation and sustainable use of native biological resources.”[62]

The Biodiscovery Act requires the grant of a ‘collection authority’ prior to the collection of native biological resources[63] and sets out a process for establishing benefit-sharing agreements.[64] The Act does not specifically address access to and use of traditional knowledge associated with biological resources and as noted by Stoianoff the terminology used in the Act is very different to that used in the EPBC Act and as a result the regime is more limited in scope and operation.[65] In addition to the Biodiscovery Act, the Queensland Biotechnology Code of Ethics regulates the activities of certain organisations with regards to access to biological resources. The code applies to Queensland Biotechnology Organisations defined as:

‘(a) Queensland Government agencies, research centres, laboratories and public hospitals that conduct biotechnology activities;

(b) Companies, academic institutions and research bodies that receive financial assistance from the Queensland Government to undertake biotechnology activities; and

(c) Research organisations including CRCs and Centres of Excellence that receive financial assistance from the Queensland Government to undertake biotechnology activities, and or that conduct biotechnology activities that have a Queensland Government body or officer as a participating member.’[66]

The Code addresses some of the deficiencies of the Biodiscovery Act in that it covers access to private land and requires reasonable benefit sharing arrangements to be entered into with Indigenous peoples where traditional knowledge is obtained and used in the course of biodiscovery.[67] However, as noted above, the Code applies to a limited group of organisations and while other organisations engaging in biotechnology activities may voluntarily subscribe to the terms of the Code[68] there are sufficient gaps to allow organisations to circumvent the terms of the regime.

Access to biological resources in the Northern Territory is governed by the terms of the Biological Resources Act 2011 (NT). The purpose of the Act is to facilitate bio-prospecting[69] defined in the Act as ‘the taking of samples of biological resources, existing in situ or maintained in an ex situ collection of such resources, for research in relation to any genetic resources, or biochemical compounds, comprising or contained in the biological resources.’[70] In order to achieve this objective, the Act recognises the ‘special knowledge held by indigenous persons’ about biological resources.[71] The Act establishes an access and benefit-sharing regime and specifically deals with access to resources on Aboriginal land[72] and use of ‘indigenous people’s knowledge.’[73] The term ‘indigenous person’s knowledge’ is defined as knowledge ‘obtained from an indigenous person or indigenous persons’ and does not include knowledge obtained from scientific or other public documents, or otherwise from the public domain.[74] A person is an ‘indigenous person’ if that person is ‘a member of the Aboriginal race of Australia... or a descendant of an indigenous inhabitant of the Torres Strait Islands.’[75] Under the regime established by the Act, anyone wishing to engage in bio-prospecting in the Territory must apply for a permit[76] and a benefit-sharing agreement must be entered into with the resource access provider.[77] Similar to the provisions under the EPBC Act, benefit-sharing agreements under the Biological Resources Act must include a statement regarding the use of indigenous people’s knowledge including details of the source of such knowledge[78] and detail the benefits provided or commitments given in return for use of indigenous knowledge.[79]

Tasmania’s Biotechnology Strategy was released by the Tasmanian Government in 2007 and recognises the importance of a clear policy on biological resource use and management in attracting bio-discovery opportunities and investment into the State.[80] The focus of the strategy is on building biotechnology capability in Tasmania and capturing economic opportunities arising from utilisation of the State’s resources[81] and does not include any specific provisions relating to access to and use of traditional knowledge associated with biological resources. Under the action plan set out in the Biotechnology Strategy, the State of Tasmania has committed to working with local and federal policy development agencies to ‘ensure a nationally consistent policy for access to genetic resources and benefit sharing arrangements for commercial biodiscovery activity in Tasmania.’[82]

The Victorian Government policy document ‘Biodiscovery in Victoria: A framework for managing access to and use of our native biological resources’ sets out a framework for ensuring that appropriate procedures are established and used in seeking and obtaining access to biological resources within the State and that equitable benefit sharing arrangements are entered into.[83] The policy explicitly recognises the ‘importance of sustainable use and management to Indigenous people and the rights of Indigenous Victorians with respect to their traditional ecological knowledge and any potential benefits which may flow to them from the utilisation of such knowledge.’[84] Under the terms of the policy, biodiscovery activities involving the use of traditional ecological knowledge that is not in the public domain must be undertaken with the cooperation and involvement of the holders of that knowledge, having given prior informed consent and on mutually agreed terms.[85] Later in this chapter, Victoria’s new approach to protecting Aboriginal intangible heritage such as traditional ecological knowledge will be discussed.

Meanwhile, there are limitations to the current approach of protecting traditional knowledge associated with biological or genetic resources in Australia as legislation only provides protection to traditional knowledge in defined areas and does not capture traditional knowledge that may be located on private land. For example, the scope of the EPBC Act is limited to Commonwealth areas as defined in section 525 and as further restricted by the operation of the Regulations[86] while the provisions of the Biodiscovery Act 2004 (Qld) are applicable only to activities on State land or Queensland waters.[87] Given that the majority of Australia’s land is privately held[88] there is significant scope for circumventing both State and Commonwealth access and benefit sharing schemes in relation to biological resources, and consequently, associated Indigenous knowledge.[89] As discussed above, certain State legislation does not even contemplate traditional knowledge when regulating access to biological resources in their territory and it has been argued by the States that it is the responsibility of the Commonwealth to implement a regime protecting traditional knowledge as a form of intellectual property.[90] This piecemeal approach has led to significant gaps in protection and as identified in a recent report, has resulted in limited benefits.[91] A nationally consistent regime is essential to prevent not only jurisdiction shopping but also to provide certainty for both Indigenous communities and other stakeholders such as multinational corporations and research institutions.[92]

Access and Benefit Sharing in practice

Despite the challenges described above, there are a number of positive examples of collaboration between Indigenous communities and the research community with regards to biological resources and traditional knowledge. The Chuulangun Aboriginal Corporation and the Quality Use of Medicines and Pharmacy Research Centre at the University of South Australia are engaged in a collaborative research project to evaluate the medicinal properties of bush plants from the Kaanju Homelands, Wenlock and Pascoe Rivers, Cape York Peninsula.[93] The aim of the project is to investigate the properties of plants used as traditional medicines and to ‘facilitate the preservation and transfer of cultural knowledge about these plants among core Northern Kaanju families living on homelands.’[94] The Chuulangun Aboriginal Corporation and University of South Australia entered into a Collaborative Research Agreement that specifically addresses ‘Indigenous Cultural and Intellectual Property Rights’ and sets out the obligations of the parties with respect to benefit sharing.[95] The Chuulangun Aboriginal Corporation was named as a Partner Investigator with the University of South Australia on the Australian Research Council Linkage Project and is strongly involved in directing and developing the research and commercialisation decisions. The research has identified compounds with anti-inflammatory properties that have been protected in Australia, the United States of America, Japan and Europe with Mr David Claudie, who has knowledge of the medicinal uses of the plants through his father’s bloodline, named as an inventor.[96] The project serves as an example of the benefits that may flow to all parties where collaborative arrangements are entered into on the basis of mutual trust and understanding.

Another example is that of the research conducted in collaboration between the Jarlmadangah Burru Aboriginal Corporation and Griffith University to develop an analgesic compound derived from the mudjala plant. The research has resulted in several patents that are co-owned by Jarlmadangah Burru Aboriginal Corporation and Griffith University[97] with a company set up by the Jarlmadangah Burru Aboriginal Corporation to hold intellectual property assets and deal with commercial matters.[98] In addition to sharing in intellectual property rights arising from the project, benefit sharing extends to participation by the community in cultivation and harvesting of the plant material with training provided to community members in sustainable practices.[99] As observed by Marshall et al, the ‘opportunity to wild harvest or, cultivate and supply, the plant material required for the supply chain is one way of ensuring Access and Benefit Sharing arrangements.’[100]

The Tropical Indigenous Ethnobotany Centre within the Australian Tropical Herbarium was established in partnership between Traditional Owners, the Australian Tropical Herbarium, The Department of Science, Information Technology, Innovation and the Arts (DSITIA), CSIRO and the Cairns Institute.[101] The aim of the Centre is to ‘record, document and research cultural plant use knowledge, which could be of mutual benefit to traditional Owners and their partners’ and to ‘empower Indigenous people to renew and strengthen their cultural knowledge and practices about plants.’[102] The activities of the Centre support Indigenous communities in sharing information assisting in the prevention of inter-generational loss of knowledge and allowing for the protection of Indigenous intellectual and cultural property rights.[103]

Another collaboration focusing on the identification and conservation of traditional knowledge is the research project established by the Yaegl Local Aboriginal Land Council and Macquarie University. This project, funded by the National Health and Medical Research Council, aims to conserve knowledge of historical and cultural significance through the use of databases and to investigate the properties of local bush medicines particularly those with anti-bacterial and anti-fungal properties.[104] Ownership of the databases is vested with the local community with joint ownership and sharing of benefits arising from commercialisation of the research outcomes.[105] Other benefits from the project include the establishment of a high school Indigenous science program and Yaegl bush medicine book.[106] Further details about this collaboration are provided by the Macquarie University research team in Chapter 8 of this volume.

A sui generis approach

The primary purpose of the legislation set out above is the regulation of access to and use of biological resources rather than the protection of traditional knowledge. The approach is not consistent across the States and Territories and thereby does not live up to the intent of having a ‘nationally consistent approach’. While the inadequacies may be addressed by drafting additional legislation to fill the gaps, there still remains the uncertainty created by multiple sources of legislation. An alternative is to introduce sui generis or stand-alone legislation that would have application across Australia where the primary purpose is to protect traditional knowledge. This approach is supported by both the Conference of the Parties to the Convention on Biological Diversity[107] and the World Intellectual Property Organisation[108] and could be legislated at the Commonwealth level[109] or implemented consistently across each of the Australian States and Territories. Sui generis regimes can better take into account the diverse needs and expectations of Indigenous communities,[110] establish rights in and protect the integrity of traditional knowledge and regulate access to and use of traditional knowledge subject to prior informed consent, upon mutually agreed terms and the establishment of fair and equitable benefit sharing.[111] Further, sui generis regimes present an opportunity to accommodate customary law in the protection of traditional knowledge.[1]

It has been argued that use of sui generis regimes to protect traditional knowledge may actually hinder access to affordable knowledge goods including for Indigenous and local communities[112] and act to reinforce the cultural divide between rights holders and rights users.[113] The same however may be said for the use of the conventional intellectual property system to protect traditional knowledge, for example, where patent protection and the resulting increase in demand by commercial interests could drive up prices and threaten availability of the relevant biological resource for local users.[114] It is also suggested that sui generis regimes may not provide the certainty desired by stakeholders. The absence of clear consensus on the scope of the right granted including agreed definitions of traditional knowledge and the class of rights holder may present difficulties[115] and must be addressed in formulating a workable solution.

In addition, there are questions as to how stand-alone laws would interact with the conventional intellectual property system and the terms of global trade agreements such as TRIPS.[116] While it has been argued that the existing intellectual property law system is sufficient to protect traditional knowledge,[117] traditional knowledge does not sit easily within the confines of the western concept of intellectual property. Innovation in traditional knowledge is often cumulative and the result of collective effort and therefore does not fit a system where evidence of an inventive step or the identity of a specific inventor or inventors must be provided in order to obtain protection.[118] Further, patent or plant breeders rights protection, even if obtainable, have limited timeframes for protection while traditional knowledge is part of a living culture that may continue into perpetuity.[119] Should that knowledge enter the public domain it makes it no less significant to the community that holds that knowledge, however, the intellectual property system renders such knowledge available for anyone in society to use regardless of the cultural norms surrounding the use of that knowledge. These and various other inadequacies of the intellectual property system reinforce the need for a sui generis regime to protect traditional knowledge.[120]

A recent White Paper prepared for the New South Wales Government as part of the NWLLS Project[121] sets out a legislative framework designed specifically for the protection of traditional knowledge associated with natural resources (the 2014 White Paper).[122] In this 2014 White Paper,[123] the proposed legislation recognises the rights of Aboriginal communities in their traditional knowledge and provides for an access and benefit-sharing regime. Parties seeking to access traditional knowledge would be required apply for permission and enter into an access agreement setting out the benefits to be shared with the relevant Aboriginal Community or Communities.

It is suggested that the legislative model proposed in the 2014 White Paper provides an opportunity to comprehensively address the concerns of Aboriginal communities with regards to traditional knowledge and meet Australia’s obligations under international treaties.[124] Not only does the regime provide recognition to the rights of Aboriginal communities to their traditional knowledge including the right to control the use of that knowledge and the right to share in benefits arising from such use, the legislation also provides a formal mechanism for dealing with traditional knowledge providing greater certainty regarding the obligations that may arise for third parties when using traditional knowledge.[125] It is this certainty that may then drive greater opportunities for collaboration and for Aboriginal communities to participate in industries based on their traditional knowledge.

In developing any regime for the protection of traditional knowledge it is of primary importance that any regulation reflects the diverse needs and expectations of Indigenous Australians and recognises the special relationship of Indigenous Australians with their traditional lands and the culture to which their knowledge belongs. Sufficient flexibility should be incorporated into any regime to ensure that Indigenous people and communities can implement the legislation in a way best suited to their needs. For example, Indigenous communities may differ in approach as to who may be recognised as part of the community or who may be authorised to speak on behalf of the community. Further, Indigenous communities should be given the autonomy to make decisions affecting their community including whether or not access may be granted and flexibility in determining the types of benefits that may be acceptable. Such flexibility should be able to be readily incorporated into a strong framework that provides sufficient support and capacity building to Indigenous communities to facilitate such an approach. Since the publication of the 2014 White Paper by the Indigenous Knowledge Forum, a notable development has taken place in the state of Victoria. The Victorian government amended the Aboriginal Heritage Act 2006 in 2016 with the introduction of Part 5A of the Act to protect Aboriginal intangible heritage[126] as a form of Aboriginal cultural heritage. This legislation protects Aboriginal cultural heritage under a permit system with the assistance of a cultural heritage management plan but which, until this year, focussed on sacred tangible Aboriginal objects. It is not directly associated with Victoria’s Biodiscovery framework considered above but sits separately under the portfolio of Aboriginal Affairs.

The 2016 amendments to the Aboriginal Heritage Act 2006 require Aboriginal intangible heritage to be registered in order to have protection under the Act and only allow traditional owner groups, recognised by the State as being representative of a group of traditional owners, the power to apply to have that intangible heritage registered.[127] The Act there by does not recognise any rights such a traditional owner group might have in their intangible heritage that has become part of the public domain. However, the new legislation, unlike the process of registering tangible heritage, requires that the Secretary engage in a ‘deliberative decision making process for determining the appropriateness of an application to register Aboriginal intangible heritage’ before registering such heritage.[128] Given that such intangible heritage may not have ‘tangible evidence’ of its existence and connection to the traditional owners, how would the Secretary make such a determination? This mechanism takes power away from the traditional owners to identify and protect their intangible heritage and flies in the face of self-determination. Further, the Explanatory Memorandum notes that the legislation is silent on whether there is an ability to appeal the Secretary’s decision or have it reviewed and is also silent in the instance that there is a dispute between traditional owner groups.[129]

Meanwhile, the new section 79D of the Act does provide for Aboriginal intangible heritage agreements for the use of such heritage and provision of compensation to be paid for such use, including providing a prescribed form for such an agreement at section 79E and the need to register the agreement under section 79F, This accords with the framework suggested in the 2014 White Paper. The Act also takes the step of creating offences for unauthorised commercial use with varying levels of culpability whether the use is carried out by a person party to the Aboriginal intangible heritage agreement or not. This is also in line with the recommendations made in the 2014 White Paper although the offences there are not limited to unauthorised commercial use. While the new Victorian legislation is a step in the right direction, it does place Aboriginal intangible heritage at the mercy of government administrative processes rather than providing a mechanism that empowers the very communities seeking to protect their intangible heritage. Further, it provides yet another alternative approach which does not accord with any of the other states, territories or federal governments. Whatever happened to a ‘nationally consistent approach’?

Conclusions

To date, Australia’s approach to protection of traditional knowledge and genetic resources has been piecemeal at best with no comprehensive coverage across the nation. Aside from jurisdictional gaps there are also divergent approaches regarding what is protected. There is also the challenge of meshing protection with existing regimes for protecting intellectual property while meeting obligations under international treaties. While the legislative issues present their own challenges a further issue is recognising the diversity of Aboriginal and Torres Strait Islander communities and their circumstances. There is a need to ensure that any regime for the protection of traditional knowledge accurately and adequately embraces the cultural needs of the Aboriginal and Torres Strait Islander communities that fall under its jurisdiction. Not least amongst these requirements is ensuring that protocols for consenting to access are consistent with the practices of communities regarding knowledge holding and authority to share knowledge. Assumptions regarding who should be responsible for giving permission need to be closely examined. Self-determination is an important aspect of implementing law that impacts Indigenous communities so it is imperative that any benefit sharing mechanism provides the necessary latitude for communities to negotiate in their best interests. Finally, novel approaches such as sui generis legislation provide a unique opportunity to not only get these issues right but to promote a legislative response that embraces the cultural practices and customary law of Australia’s Indigenous peoples.

[1] BSc, LLB (Macq) LLM Hons (UTS). Evana Wright is a PhD candidate at the University of Technology Sydney (UTS) and a recipient of the Quentin Bryce Law Doctoral Scholarship.
[2] Dr Ann Cahill was a registered Australian and New Zealand patent attorney. She is involved in teaching and researching in the field of intellectual property. Her research work includes protection of traditional knowledge and she was the Research Associate on the project, Recognising and Protecting Indigenous Knowledge Associated with Natural Resource Management, funded by the Aboriginal Communities Funding Scheme of the Namoi Catchment Management Authority (now North West Local Land Services (NWLLS)) (the NWLLS Project).
[3] Natalie P. Stoianoff is a Professor of Law and Director of the Intellectual Property Program at UTS and the Chief Investigator on the NWLLS Project.
[4] Australian Human Rights Commission, Chapter 7 - The Protection of Indigenous knowledge’s, Native Title Report 2008, 215.
[5] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 30619 (entered into force 29 December 1993) (‘CBD’).
[6] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, opened for signature 29 October 2010, UNEP/CBD/COP/DEC/X/1 (entered into force 12 October 2014) (‘Nagoya Protocol’).
[7] In accordance with art 33 of the Nagoya Protocol.
[8] Australia signed the Nagoya Protocol on 20 January 2012.
[9] Nagoya Protocol, art 17.
[10] Australian Government, Department of the Environment, A Model for Implementing the Nagoya Protocol in Australia (2014). See also Australian Government, Department of the Environment and Energy, The Nagoya Protocol – Convention on Biological Diversity <http://www.environment.gov.au/topics/science-and-research/australias-biological-resources/nagoya-protocol-convention-biological> ..
[11] IP Australia, Indigenous Knowledge Consultation <https://www.ipaustralia.gov.au/about-us/public-consultations/indigenous-knowledge-consultation>.
[12] Conservation International and the United Nations Environment Program (UNEP) World Conservation Monitoring Centre recognise 17 mega-diverse countries accounting for more than 70% of the earth’s biodiversity. The countries classified as “mega-diverse” are Australia, Brazil, China, Colombia, Democratic Republic of the Congo, Ecuador, India, Indonesia, Madagascar, Malaysia, Mexico, Papua New Guinea, Peru, the Philippines, South Africa, the United States of America and Venezuela. See Russell A Mittermeier, Patricio Robles Gil and Cristina Goettsch Mittermeier, Megadiversity: Earth's Biologically Wealthiest Nations (Conservation International 1999)
[13] John Voumard, Commonwealth Public Inquiry into access to biological resources in Commonwealth areas (2000), 19.
[14] Michael Blakeney, ‘Bioprospecting and the protection of traditional medical knowledge’ (1997) 6 European Intellectual Property Reports 296; Michael Blakeney, ‘Ethnobiological knowledge and the intellectual property rights of indigenous peoples in Australia’ in Michael Blakeney (ed), Intellectual Property Aspects of Ethnobiology (Sweet and Maxwell, 1999) 83, 85 cited in Susette Biber-Klemm, Thomas Cottier et al, ‘The Current Law of Plant Genetic Resources and Traditional Knowledge’ in Susette Biber-Klemm, Thomas Cottier and Danuta Szymura Berglas (eds) Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives (CAB International, 2006) 56, 96.
[15] International Treaty on Plant Genetic Resources for Food and Agriculture, opened for signature 3 November 2001, 2400 UNTS 43345 (entered into force 29 June 2004) (‘ITPGRFA’).
[16] See for example, art 8(j) of the CBD which requires member countries to ‘(s)ubject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.’ See also art 9 of the ITPGRFA.
[17] For the purposes of this chapter, the term ‘Indigenous Australians’ is used to refer to Aboriginal and Torres Strait Islander peoples. Other terminology may be used to reflect the precise wording used in relevant legislation.
[18] For example, managed burning practices used by Indigenous Australians. See The Traditional Knowledge Revival Pathways (TKRP) and the Kuku Thaypan Fire Management Research Project.
[19] Madhavi Sunder, 'The Invention of Traditional Knowledge' (Spring 2007) 70 Law and Contemporary Problems 97, 100; Graham Dutfield, 'Protecting Traditional Knowledge: Pathways to the Future' (2006) Issue Paper No. 16: ICTSD Programme on IPRs and Sustainable Development, ix.
[20] Michael Dodson and Olivia Barr, 'Breaking the Deadlock: Developing and Indigenous Response to Protecting Indigenous Traditional Knowledge' (2007) 11 Australian Indigenous Law Review 19, 20; Charles McManis and Yolanda Teran, 'Trends and scenarios in the legal protection of traditional knowledge' in Tzen Wong and Graham Dutfield (eds), Intellectual Property and Human Development: Current Trends and Future Scenarios (Cambridge University Press, 2011) 139, 140.
[21] World Intellectual Property Organisation, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge 1998-1999 (April 2001); Terri Janke, Our Culture: Our Future Report on Australian Indigenous Cultural and Intellectual Property Rights (Prepared for Australian Institute of Aboriginal and Torres Strait Islander Studies and the Aboriginal and Torres Strait Islander Commission, 1998).
[22] Susette Biber-Klemm and Danuta Szymura Berglas, 'Problems and Goals' in Susette Biber-Klemm, Thomas Cottier and Danuta Szymura Berglas (eds), Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives (CAB International, 2006) 3, 21; Graham Dutfield, 'Developing and Implementing National Systems for Protecting Traditional Knowledge: A Review of Experiences in Selected Developing Countries' (2000) UNCTAD Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices, 7; Krishna Ravi Srinivas, 'Traditional Knowledge and Intellectual Property Rights: A Note on Issues, Some Solutions and Some Suggestions' (2008) 3 Asian Journal WTO and International Health Law and Policy 81, 86.
[23] Katrina Brown, 'Medicinal Plants, indigenous medicine and conservation of biodiversity in Ghana' in Timothy M Swanson (ed), Intellectual Property Rights and Biodiversity Conservation: an interdisciplinary analysis of the values of medicinal plants (Cambridge University Press, 1995), 201.
[24] Jack Kloppenburg Jr, 'No Hunting! Biodiversity, Indigenous Rights and Scientific Poaching' (1991) 15(3) Cultural Survival Quarterly 14.
[25] Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (South End Press, 1997), 11-16.
[26] Daniel F Robinson, 'Traditional Knowledge and Biological Product Derivative Patents: Benefit-Sharing and Patent Issues Relating to Camu Camu, Kakadu Plum and Acai Plant Extracts' (April 2010) Traditional Knowledge Bulletin: Topical Issues Series.
[27] Terri Janke, Indigenous Ecological Knowledge and Natural Resources in the Northern Territory: Report on the Current Status of Indigenous Intellectual Property (A report commissioned by the Natural Resources Management Board (NT), April 2009) 41-42
[28] Henrietta Fourmile-Marrie, 'Developing a Regime to Protect Indigenous Traditional Biodiversity-Related Knowledge' (2000) 1 Balayi 163, 164; Katie O'Bryan, 'The Appropriation of Indigenous Ecological Knowledge: Recent Australian Developments' (2004) 1 Macquarie Journal of International and Comparative Environmental Law 29, 32; Shiva, above n 8, 14.
[29] Fourmile-Marrie, above n 28, 163.
[30] See for example, the Aboriginal Folklore Bill 1981 (Cth) recommended by the Report of the Working Party on the Protection of Aboriginal Folklore 1981. Despite the fact that Working Party was established by the Commonwealth Department of Home Affairs and Environment and included representatives from the Attorney-General’s Department, the Australia Council, the Australian Copyright Council, the Department of Prime Minister and Cabinet and the Department of Aboriginal Affairs the recommendations of the Working Party were not implemented.
[31] Australian Government, National Strategy for Ecologically Sustainable Development (December 1992). The National Strategy for Ecologically Sustainable Development was prepared by the Ecologically Sustainable Development Steering Committee and endorsed by the Council of Australian Governments (COAG).
[32] Ibid Objective 22.1
[33] Australian Government, Department of Environment, Sport and Territories (DEST), National Strategy for the Conservation of Australia’s Biological Diversity, (1996)
[34] Ibid 10.
[35] Ibid Objective 1.8; Action 4.1.8.
[36] Ibid Action 1.8.2
[37] Australian and New Zealand Environment and Conservation Council, Review of the National Strategy for the Conservation of Australia’s Biological Diversity (Environment Australia, 2001)
[38] Ibid Chapter 1.8, Appendix A.
[39] Australian Government, Department of Sustainability, Environment, Water, Population and Communities, Australia’s Biodiversity Conservation Strategy 2010-2030, (Canberra 2010).
[40] The Natural Resource Management Ministerial Council is made up of Australian federal, state and territory and New Zealand ministers responsible for the policy areas of primary industries, natural resources and the environment.
[41] This recognition demonstrates the then Federal Government’s willingness to adopt the United Nations Declaration of the Rights of the Indigenous Peoples 2007 which it signed in April 2009.
[42] Australian Government, Department of Sustainability, Environment, Water, Population and Communities, Australia’s Biodiversity Conservation Strategy 2010-2030, (Canberra 2010) 40.
[43] Ibid. See Outcomes 1.2.1-1.2.3.
[44] Ibid. See Target 2.
[45] The term ‘Commonwealth area’ is defined in s 525 of the EPBC Act and includes land owned or held under lease by the Commonwealth or a Commonwealth agency, the coastal sea of Australia or an external territory, the continental shelf, the waters of the exclusive economic zone and the seabed under those waters and any other area of land, sea or seabed that is included in a Commonwealth reserve.
[46] Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) r8A.06
[47] Ibid r8A.07
[48] Ibid r8A.08
[49] Ibid r8A.08(h)
[50] Ibid r8A.08(i)
[51] Ibid r8A.10(1)
[52] Ibid r8A.10(2)
[53] Ibid r8A.08(h) – (j)
[54] See for example, Schedule 5 to the Model Deed of Agreement in relation to Access to Biological Resources in Commonwealth Areas for Commercial or Potential Commercial Purposes and Benefit-Sharing <http://laptop.deh.gov.au/biodiversity/science/access/permits/pubs/benefit-sharing-model.pdf> [55] Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) r8A.12
[56] Ibid r8A.13
[57] See Department of Environment, List of permits issued <http://www.environment.gov.au/resource/list-permits-issued> . It should be noted however that these figures exclude any permits granted by the Great Barrier Reef Marine Park Authority, the Australian National Botanic Gardens, the Australian Institute of Marine Sciences and the Australian Antarctic Division. According to a report submitted to the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in February 2010, over 400 permits have been issued under Part 8A of the EPBC Regulations and other regimes accredited under the Regulations (see ‘Policies, Measures and Experiences Regarding Intellectual Property and Genetic Resources: Submission by Australia’ WIPO/GRTKF/IC/16/INF/18 (19 February 2010)).
[58] World Intellectual Property Organisation, ‘Policies, Measures and Experiences Regarding Intellectual Property and Genetic Resources: Submission by Australia’ WIPO/GRTKF/IC/16/INF/18 (19 February 2010).
[59] Biodiscovery Act 2004 (Qld); Biological Resources Act 2011 (NT); National Parks and Wildlife Act 1974 (NSW); Wilderness Act 1987 (NSW); Coastal Protection Act 1948 (NSW); Marine Act 1988 (Vic); Catchment and Land Protection Act 1994 (Vic); Flora and Fauna Guarantee Act 1988 (Vic); Wildlife Conservation Act 1950 (WA); Nature Conservation Act 1992 (Qld).
[60] Natural Resource Management Ministerial Council, Nationally Consistent Approach for Access to and the Utilisation of Australia’s Native Genetic and Biochemical Resources (October 2002)
[61] Ibid 6.
[62] Biodiscovery Act 2004 (Qld) s3(1).
[63] Ibid Part 3.
[64] Ibid Part 5.
[65] Natalie P Stoianoff, ‘The recognition of traditional knowledge under Australian biodiscovery regimes – Why bother with intellectual property rights?’ in Christoph Antons, (ed), Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, (Kluwer Law International, 2009) 293, 306.
[66] Queensland Biotechnology Code of Ethics 2006, 4 <http://www.qld.gov.au/dsitia/assets/documents/qld-biotechnology-code-of-ethics.pdf> ..
[67] Ibid art 10.
[68] As at September 2016 there are 10 Subscribing Biotechnology Organisations to the Queensland Biotechnology Code of Ethics <https://publications.qld.gov.au/dataset/29a7ae31-9411-4daa-9bb4-092394a2721a/resource/f5b1b2bd-5116-42e3-8b6a-342c10786be3/download/coepublicregister.pdf>.
[69] Biological Resources Act 2011 (NT) s3.
[70] Ibid s5.
[71] Ibid s3(2)(d).
[72] Ibid s28(2)(b)(ii).
[73] Ibid s29(1).
[74] Ibid s29(2).
[75] Ibid s4(2).
[76] Ibid s11.
[77] Ibid ss 16, 19.
[78] Ibid s29(1)(h).
[79] Ibid s29(1)(i).
[80] Government of Tasmania, Department of Economic Development, Bio-Vision Tasmania 2007-2015: Tasmania’s Biotechnology Strategy (June 2007), 21.
[81] Ibid 5.
[82] Ibid Action 1.4.
[83] Victorian Government, Department of Sustainability and the Environment, Biodiscovery in Victoria: A framework for managing access to and use of our native biological resources (October 2008).
[84] Ibid 2.
[85] Ibid 7.
[86] Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) r8A.02
[87] See the definition of “State Land” in Biodiscovery Act 2004 (Qld) Schedule Dictionary.
[88] AUSLIG (Australian Land Survey Information Group) 1993, Land Tenure Map (now available at Australian Government, Geoscience Australia website <www.ga.gov.au/education/facts/tenure.htm>, 4 December 2007) cited at n 81 in Natalie P Stoianoff, 'The Recognition of Traditional Knowledge under Australian Biodiscovery Regimes: Why Bother with Intellectual Property Rights?' in Christoph Antons, (ed), Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, (Kluwer Law International, 2009) 293, 307.
[89] Stoianoff, above n 65, 307.
[90] Stoianoff, above n 65, 306.
[91] Christian Prip, G Kristin Rosendal, Steinar Andresen and Morten Walloe Tvedt, The Australian ABS Framework – A Model Case for Bioprospecting? (2014) FNI Report 1/2014, Access and Benefit Sharing: The ABS Capacity Development Initiative.
[92] Natalie Stoianoff and Tom Fox, 'Managing Access to Australia's Biological Resources - Issues in Developing a National Approach' in Natalie Stoianoff (ed), Accessing Biological Resources: Complying with the Convention on Biological Diversity (Kluwer Law International, 2004) 91, 95.
[93] See Kuuku I’yu Northern Kaanju Medicinal Plants Project <http://www.kaanjungaachi.com.au/KaanjuOilsDis.htm> .
[94] Ibid.
[95] Ibid.
[96] ITEK Ventures, Australian Bush Bioactives: Australian Indigenous native plant bioactive extracts and compounds with potent non-steroidal anti-inflammatory activity <http://www.itek.com.au/portfolio.raw?task=callelement & item_id=145 & element=05fc8d07-e697-4be7-a9c7-022874e004c4 & method=download> See also IP Australia, Indigenous Knowledge Consultation <https://www.ipaustralia.gov.au/about-us/public-consultations/indigenous-knowledge-consultation>.
[97] Australia Patent No 2004293125 and PCT/AU2004/001660; Japan Patent No 2006-540096; India Patent No 25290; New Zealand Patent No 547377 and United States of America Patent No 7618946.
[98] Virginia Marshall, Terri Janke and Anthony Watson, ‘Community Economic Development in Patenting Traditional Knowledge: A Case Study of the Mudjala TK Project in the Kimberley Region of Western Australia’ [2013] IndigLawB 21; (2013) 8(6) Indigenous Law Bulletin 17, 18.
[99] Ibid 19.
[100] Ibid.
[101] Australian Tropical Herbarium, Research and Programs, Tropical Indigenous Ethnobotany Centre (TIEC) <https://www.ath.org.au/australian-tropical-herbarium/research-and-programs/tropical-indigenous-ethnobotany-centre-tiec>.
[102] Ibid.
[103] The functions of the Tropical Indigenous Ethnobotany Centre include: ‘keeping traditional and cultural knowledge alive’; ‘protection of Indigenous intellectual and cultural property rights over plants’; ‘passing it on [to] the younger generation’; and ‘getting information back into the community’. See Australian Tropical Herbarium, Research and Programs, Tropical Indigenous Ethnobotany Centre (TIEC) <https://www.ath.org.au/australian-tropical-herbarium/research-and-programs/tropical-indigenous-ethnobotany-centre-tiec>.
[104] Macquarie University, Unique Indigenous medicine project at Macquarie (5 June 2008) <http://www.international.mq.edu.au/globe/2008-23/research> .
[105] Ibid.
[106] Sue Neales, ‘Yaegyl people, Macquarie University combine to give bush medicine a boost’, The Australian (online), 20 August 2014 <http://www.theaustralian.com.au/news/health-science/yaegl-people-macquarie-uni-combine-to-give-bush-medicine-a-boost/news-story/f0f8919728f74d384bcbb94092e84f3c> ..
[107] Convention on Biological Diversity, 'Conference of the Parties No. 8, Decisions VII/5 'Article 8(j) and Related Provisions'' <www.cbd.int/decision/cop/?id=11017>.
[108] WIPO General Assembly, Matters Concerning the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, 38th (19th Ordinary) sess, Agenda Item 28, UN Doc WIPO/GRTKF/IC/15/REF-DECISION 28 (22 September - 1 October 2009).
[109] Utilising the external affairs power under the Australian Constitution.
[110] Christoph Antons, 'Sui Generis Protection for Plant Varieties and Traditional Agricultural Knowledge: The Example of India' (2007) (12) European Intellectual Property Review 480.
[111] Chidi Oguaman, International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity and Traditional Medicine (University of Toronto Press, 2006), 4, 217-218.

[112] J. Janewa OseiTutu, 'A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law' (2011) 15(1) Marquette Intellectual Property Law Review 147, 154.
[113] Ibid 214.
[114] Cynthia M Ho, 'Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with Global Patent Policies' (2005-2006) 39(3) University of Michigan Journal of Law Reform 433.
[115] OseiTutu, above note 113, 155.
[116] Agreement on Trade Related Aspects of Intellectual Property Rights 1995
[117] Jim Chen, 'There's No Such Thing as Biopiracy...and It's a Good Thing Too' (2006) 37 McGeorge Law Review 1; Rosemary J Coombe, 'Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International Law posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity' (1998) 6 Indiana Journal of Global Legal Studies 59; Cynthia M Ho, 'Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with Global Patent Policies' (2005-2006) 39(3) University of Michigan Journal of Law Reform 433.
[118] World Intellectual Property Organisation Intergovernmental Committee on Intellectual Property and Genetic Resources Traditional Knowledge and Folklore, The Protection of Traditional Knowledge: Draft Gap Analysis: Revision, WIPO Doc WIPO/GRTKF/IC/13/5(b) Rev. (11 October 2008) 24-25.
[119] Ibid.
[120] Natalie Stoianoff, 'Navigating the Landscape of Indigenous Knowledge - A Legal Perspective' (2012) 90 Intellectual Property Forum 23, 38.
[121] This project is titled Recognising and Protecting Indigenous Knowledge Associated with Natural Resource Management, and was funded by the Aboriginal Communities Funding Scheme of the Namoi Catchment Management Authority (now North West Local Land Services (NWLLS)) with Chief Investigator being Professor Natalie P Stoianoff, Research Associate being Dr Ann Cahill and PhD student researcher being Evana Wright (the NWLLS Project).
[122] UTS Indigenous Knowledge Forum and North West Local Land Services (2014), Recognising and Protecting Aboriginal Knowledge Associated with Natural Resource Management, White Paper for the Office of Environment and Heritage NSW <http://www.indigenousknowledgeforum.org/white-paper> (the 2014 White Paper).
[123] The 2014 White Paper was prepared by the authors together with Dr Virginia Marshall, other members of the Working Party of the UTS Indigenous Knowledge Forum (Aunty Fran Bodkin, Uncle Gavin Andrews, Barry Cain, Simon Munro, Chris Celovic, Patricia Adjei, Dr Virginia Marshall, Gerry Turpin, Daniel Posker, Francis Kulirani, Evana Wright, Gail Olsson, Judith Preston, Dr Michael Davis, Associate Professor Subramanyam Vemulpad, David Harrington, Omar Khan, Nerida Green and Gail Pearson) and in close consultation with Aboriginal communities in North West NSW.
[124] The 2014 White Paper, above n 123, 20.
[125] The 2014 White Paper, above n 123, 21.
[126] ‘Aboriginal intangible heritage’ is defined in section 79B(1) of the Aboriginal Heritage Act 2006 (Vic) to mean ‘any knowledge or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.’
[127] Aboriginal Heritage Act 2006 (Vic) s 79C.
[128] Aboriginal Heritage Amendment Bill 2015, Explanatory Memorandum, 19.
[129] Ibid 19.

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