Michael Davis
Science, Technology, Environment and Resources Group
29 June 1998
Contents
Major Issues Summary
Introduction
Biological diversity, bioprospecting
and Indigenous knowledge
The values of biological diversity
Bioprospecting
Biological diversity, cultural diversity and Indigenous
peoples
Indigenous knowledge
Indigenous peoples and the
environment
What is Indigenous knowledge?
Expressions of Indigenous knowledge
Challenges to recognising and protecting Indigenous knowledge
Protecting Indigenous knowledge and biological
diversity-the international context
Intellectual property rights
Other international developments
Other developments in environment and conservation
Indigenous peoples' statements and declarations
Approaches to protecting Indigenous knowledge
Benefit sharing approaches, contracts
and agreements
Rights based approach
Protecting Indigenous knowledge and
biodiversity-Australian developments
Implementing the Convention on
Biological Diversity
Other environment related developments
Intellectual property rights
Native title and regional agreements
Other contracts and agreements
Land and heritage
Common law solutions
Administrative and policy reforms
Integrating different knowledge systems: Indigenous knowledge and
western science
Conclusions
Endnotes
Bibliography
Over the millennia, Indigenous peoples have
developed a close and unique connection with the lands and
environments in which they live. They have established distinct
systems of knowledge, innovation and practices relating to the uses
and management of biological diversity on these lands and
environments.
Much of this knowledge forms an important
contribution to research and development, particularly in areas
such as pharmaceuticals, and agricultural and cosmetic products. In
the context of these uses, Indigenous peoples claim that their
rights as traditional holders and custodians of this knowledge are
not adequately recognised or protected. They demand not only
recognition and protection of this knowledge, but also the right to
share equitably in benefits derived from the uses of this
knowledge.
Existing intellectual property laws offer
limited scope for the recognition of Indigenous peoples' rights in
biodiversity related knowledge and practices. Similarly, native
title, heritage and environmental laws and policies also provide
insufficient means for addressing Indigenous rights in
biodiversity-related knowledge and practices.
The challenge is to protect the rights of
Indigenous peoples to their knowledge, while also conserving
biological diversity. The Convention on Biological Diversity is one
international instrument that has the potential to achieve both
these objectives. Its primary objective is the conservation and
management of biological diversity. It also provides opportunities
for the protection of Indigenous knowledge practices and
innovations related to biodiversity and for the introduction of
measures for equitable sharing of benefits with traditional
knowledge holders.
Following Australia's ratification in 1993 of
this Convention, the introduction of initiatives need to be
considered that specifically recognise and protect the rights of
Indigenous peoples to their biodiversity related knowledge,
innovations and practices.
The introduction of measures that ensure
Indigenous peoples share equitably in benefits derived from the
uses of their knowledge will not only protect knowledge, but can
also act as incentives to environmental conservation.
This paper surveys a range of international
developments as a context for discussing some possible measures for
the protection of Indigenous knowledge. Successful measures could
include a combination of creative legislative and policy responses
to the Convention on Biological Diversity, and the use of a range
of other laws, policies and instruments. The integration of
Indigenous knowledge and practices with other conventional
approaches to land and environment is also a useful way of
achieving recognition and protection for Indigenous knowledge
systems.
Contracts, agreements and protocols are
particularly useful for protecting Indigenous knowledge systems, as
these offer the flexibility to include specific negotiated
arrangements for equitable benefit sharing, and can be designed to
meet the needs of all parties. Ultimately, the most effective
approach is to establish a dialogue with key interest groups, such
as industry, intellectual property organisations, Indigenous
communities and organisations, governments, and conservation
groups. Discussions could then proceed towards developing an
integrated conservation and benefit-sharing system based on a
partnership between the key organisations and sectors.
Biological diversity,
bioprospecting and Indigenous knowledge
This paper complements an earlier paper
Indigenous Peoples and Intellectual Property Rights,
Research Paper No. 20 (1996-97).
Biological diversity or biodiversity refers to
the 'variety of all life forms-the different plants, animals and
microorganisms, the genes they contain, and the ecosystems of which
they form a part'. There are three levels of biodiversity-genetic,
species, and ecosystem diversity, all of which form the total
diversity of Australia's environments.(1) Australia is considered
particularly rich in the extent of its diversity of flora and
fauna. Some estimates are that of the 44 000 species of plants in
Australia, about 90 per cent occur only in Australia.(2)
Australia's biological diversity is under
increasing threat of loss due to industrialisation and
urbanisation, land clearances, farming and agricultural activities.
A recent World Conservation Union report has found Australia to
have the second highest number of plant species threatened by
extinction of any country in the world.(3)
The values of biological
diversity
Biological diversity is increasingly becoming
recognised as important beyond its purely scientific interest.
Social and economic values of biodiversity are assuming greater
significance as a range of different groups, including Indigenous
peoples assert their claims and interests.
A diverse environment provides an important
storehouse for the raw materials used in a range of products and
processes, such as in agriculture, medicine, and cosmetics. Many
species are also important in a growing 'bush food' industry. The
pharmaceutical industry is arguably the largest commercial user of
plant genetic species, and the development of these products can
create significant opportunities for economic growth for this
industry sector.
The diverse range of interests in biodiversity
raises questions about how to reconcile what may sometimes be
competing interests and values in the natural environment. For
example, the conservation of biological diversity may be at odds
with the potential economic values and uses of biological
diversity. This then raises questions as to how we assign values to
nature: can nature be measured in scientific or monetary terms? Who
'owns' nature? Is the natural environment to be preserved as the
collective heritage of the nation, or is it to be subject to the
various demands, claims and interests of particular individuals,
communities or groups. Who ultimately stands to benefit most from
the harvesting of natural resources-governments, communities, or
others? Can there be a sound balance between the conservation and
protection of biodiversity for its own sake, and the sustainable
uses of it?
Among the diverse interests in the natural
environment are those of Indigenous peoples. There are many aspects
to Indigenous peoples' claims and interests in the natural
environment and biological diversity. Indigenous peoples seek
recognition and protection of their distinct rights in knowledge
of, and practices relating to the management, use and conservation
of biological diversity. They also seek the introduction of
measures to prevent exploitation of their knowledge, and
compensation or financial benefits from the uses of their
knowledge, innovations and practices. At the same time, some
customary Indigenous practices such as hunting, fishing and
gathering-often little understood by non Indigenous people-provide
potential conflict with conventional conservation and environmental
management laws, programs and activities.
It is important to recognise that there is the
same diversity of views among Indigenous peoples as there is in the
wider community. Some Indigenous people may wish to preserve
biodiversity related knowledge as their collective heritage, while
others may see potential economic benefits to be gained by allowing
the use by the wider community of their biodiversity related
knowledge and practices. Some of these issues become apparent when
considering the use of biological diversity for pharmaceutical and
other products-an activity known as bioprospecting.
Bioprospecting
Bioprospecting is the name given to the search
for useful plant related substances that can be developed into
marketable commodities such as pharmaceuticals, pesticides and
cosmetics. Increasingly sophisticated biotechnological processes
are used to transform plant derived substances into commercially
successful products with global markets. The patenting of products
and substances derived from the natural environment has particular
implications for Indigenous peoples' claims.
A patent is an important component of industrial
property law that confers exclusive rights on the creator of an
invention. The conditions required for a patent are that the
invention-either a product or a process-should be new, non-obvious
(i.e. it should involve an inventive step), and industrially
applicable. Another requirement for a patent is that the invention
should be clearly described and documented and made available to
wider society (e.g. through publications in books or journals).(4)
The following examples of bioprospecting and the patenting of
biological products raise important issues regarding the role of
Indigenous knowledge, practices and innovations, and the
applicability of patent laws to these.
The neem tree (Azadirachta indica) is
found widely throughout parts of India. It forms a central part of
Indian communities' culture and heritage. It is used by these
communities for a vast range of purposes such as in medicines,
toiletries, insecticides, fertilisers, and in agriculture.(5) The
medicinal, pharmacological and therapeutic properties of neem have
been known about and used for millennia, and it is known in
Sanskrit as Sarva Roga Nivarini, 'the curer of all
ailments'.
From the early 1970s, the neem tree began to
attract the attention of United States and global markets. In 1971
a US timber importer noted the properties of the neem tree, and
began importing it. Following testing for a pesticidal product
derived from neem extracts, the importer received clearance for
this product from the US Environmental Protection Agency in 1985,
and in 1988 he sold the patent for the pesticide to the
transnational chemical company W. R. Grace & Co.(6)
The patenting and marketing by Grace of products
based on neem derived substances led to a debate about the
appropriation of the intellectual property of Indian communities.
Indian and Third world critics of Grace's approach claim that the
preparation of neem based products has been part of the collective
community knowledge of Indian societies for millennia, and should
not have been patented by Grace. They refuted the assertions by
Grace that its methods for developing neem based products were
novel, non-obvious and based on extraction methods that constituted
an innovative technique, and therefore amenable to patenting.
Instead, the critics argued that the extraction and preparation of
active substances from neem is a traditional innovation based on
millennia of collective knowledge and practice. The critics state
that:
Patent claims on the various processes and
products of the neem that are built on the vast cultural and
intellectual heritage of the Indian people, reflect a total
devaluation of the country's intellectual heritage and an arrogance
based on the assumption of superiority of western sciences.(7)
The bioprospecting and patenting of the neem
tree has parallels in Australia, as illustrated by the case of the
smokebush.
The smokebush is the common name for
Conospermum, a plant that is widespread throughout parts
of western Australia and in parts of some other states. It was used
traditionally by Aboriginal peoples for a variety of therapeutic
purposes.(8) During the 1960s, the smokebush was among those plants
that were collected and screened for scientific purposes by the US
National Cancer Institute, under license from the West Australian
Government. In 1981, some specimens were sent to the US where they
were tested for possible anti-cancer chemicals. No cancer resistant
properties were found, and the samples were stored for several
years. Later, in the late 1980s, these samples were again tested,
but this time for potential substances that could cure AIDS. A
substance called Conocurvone was isolated which, when
laboratory tested, was found to destroy the HIV virus in low
concentrations.
To develop this substance, in the early 1990s
the WA Government granted a license to Amrad Pty Ltd, a Victorian
based multinational pharmaceutical company. The US National Cancer
Institute granted Amrad an exclusive worldwide license to develop
the patent for this anti-AIDS substance. It has been suggested that
Amrad provided $1.5 million to gain access rights to smokebush and
related species. Some estimates state that the WA Government would
receive royalties exceeding $100 million by the year 2002 if
Conocurvone is successfully commercialised. Given these commercial
values on smokebush and its derivatives, critics argue that there
should be provisions for Aboriginal peoples to share equitably in
benefits from this plant, given their role as first having
identified and used the smokebush for its therapeutic and healing
properties.(9)
The collecting and screening of smokebush by
scientific interests has been facilitated by the Western Australian
Government's use of its Conservation and Land Management Act
1984. This Act was amended in 1993 to include a clause
specifically designed to encourage state control over biological
resources. Some have argued that these amendments disadvantage
Indigenous peoples who claim rights to species, or knowledge of
species in Western Australia, favouring instead, state and industry
interests in these.(10)
These examples of bioprospecting and patenting
of biological and genetic products raise issues about what is
patentable subject matter. Patent law generally defines subject
matter that is deemed patentable in terms of what subject matter is
excluded from patent applications. These exclusions usually
comprise discoveries of materials or substances that already exist
in nature, plants or animals or products from these, or biological
processes (other than microbiological processes) for the production
of plant or animal varieties or products.(11)
Biological diversity, cultural diversity
and Indigenous peoples
The loss of rich biologically diverse
environments (such as the Amazonian forests) through activities
such as logging, land clearance and mining and development has
profound consequences in its impact on the culturally diverse
groups of Indigenous peoples whose livelihoods depend on these
environments. There is in this sense, a direct relationship between
biological diversity and cultural diversity; maintenance of the
former can help preserve the latter. The reverse is also true,
since Indigenous peoples are often the custodians and stewards of
biological diversity, the maintenance of cultural diversity is an
important factor in the conservation of biological diversity.
Despite these important links between cultural,
and biological diversity, the recognition of cultural diversity
does not necessarily always exist in harmony with the preservation
of biological diversity. The preservation of cultural diversity is
taken to include having a respect for, and maintaining Indigenous
peoples' rights to hunt, fish and gather according to their
customary laws and practices. These practices, as shown below,
sometimes conflict with the interests of conservation and
environmental protection.(12)
Ultimately, solutions need to be found that can
provide a balance between the recognition and protection of
Indigenous cultural rights, and the interests of conservation.
Joint managed protected areas, regional and local agreements, and
similar types of arrangements (discussed below) may provide some
opportunities for this balance, based on a 'new Australian land
ethic'.(13)
Indigenous peoples and the
environment
Indigenous peoples have long had a significant
interdependence with the lands and environments in which they live.
These lands and environments are vital for their survival,
providing a wide array of substances for food, shelter and
implements. They also provide a source for a variety of objects for
both ritual and everyday use. The land and environment is also
significant in Indigenous peoples' cultural, religious and social
systems. Indigenous peoples are custodians and stewards of their
lands and environments, and have been entrusted by ancestral
charters to care for these through successive generations.
The land, its features, environments and
products form cultural landscapes, which are given significance by
Indigenous belief systems. These cultural landscapes are both the
result of, and provide the focus for, ancestral events. Together
with Indigenous peoples' social, political and religious systems,
lands and environments are interwoven into a tightly integrated
cultural system that derive their meaning from the Dreaming. This
integrated cultural system forms the basis for Indigenous
knowledge.
What is Indigenous knowledge?
Indigenous people have a vast knowledge of, and
capacity for developing innovative practices and products from
their environments. The following distinctive features characterise
indigenous knowledge:
-
- collective rights and interests held by Indigenous peoples in
their knowledge
-
- close interdependence between knowledge, land, and other
aspects of culture in Indigenous societies
-
- oral transmission of knowledge in accordance with well
understood cultural principles, and
-
- rules regarding secrecy and sacredness that govern the
management of knowledge.
Knowledge is a fundamental component of
Indigenous culture, and must be considered in terms of both its
sacred and secular dimensions. To Indigenous peoples, knowledge is
not considered independently from its products and expressions, or
from actions. These all form part of a closely integrated cultural
system. The physical products and expressions of Indigenous
cultures are intimately connected to the knowledge from which they
derive, or with which they are associated.
Products and expressions of Indigenous knowledge
systems include ceremonial and ritual objects and performances,
artistic designs, works and expressions, and song, dance and story,
and subsistence and land and environment management activities
(such as hunting, fishing and gathering, and the use of fire).
Systems of knowledge, and their products and
expressions are vital to ensuring the continuity of Indigenous
cultures, and are important vehicles for enabling Indigenous
peoples to adapt their societies and cultures to introduced
societies, cultures and technologies.(14) By maintaining cultural
diversity, recognition and protection of Indigenous knowledge can
also benefit environmental conservation and sustainable
management.
Expressions of Indigenous
knowledge
Indigenous ecological knowledge is expressed in
many ways. Some particularly important expressions are customary
practices such as hunting, fishing and gathering. Since these
activities require knowledge of customary ways of procuring these
resources, the exercise by Indigenous peoples of their rights to
carry out these activities in accordance with their laws and
customs may be regarded as a demonstration of their assertion of
their rights to their traditional knowledge systems. Indigenous
customary hunting, fishing and gathering practices may therefore be
considered aspects of rights relating to land:
While caution needs to be exercised to avoid
classifying the incidents of Aboriginal title in terms of English
property law concepts, it seems clear that fishing, hunting and
gathering rights can comprise part of Aboriginal title to land.
However...while customary Aboriginal fishing, hunting and gathering
rights may be part of the bundle of rights comprised in Aboriginal
title to land, there is no necessary nexus between them.(15)
Another writer argues 'not only is the
recognition of Aboriginal fishing and hunting rights compatible
with common law concepts of interests in land, but may in fact act
as a catalyst for preserving those resources for their common
enjoyment and use'.(16) This point is supported by Section 223(2)
of the Native Title Act 1993 (Cwlth) which defines native
title 'rights and interests' to include 'hunting, gathering, or
fishing, rights and interests'. These statements support an
argument that it is not only possible, but necessary to devise a
system that can meet the objectives of both conserving
biodiversity, and also protecting Indigenous customary uses of
biodiversity.
Conservation and resources legislation varies in
all jurisdictions in terms of whether provisions allow for
Indigenous customary or traditional practices. In many cases,
legislation includes some exemptions for Aboriginal people from
regulations governing hunting, fishing and gathering. These
exemptions provide limited recognition of Indigenous peoples'
'traditional' activities concerning land use.(17) Despite these
beneficial provisions, there have been some cases in which conflict
has arisen between the requirements of conservation legislation and
Indigenous peoples' actions.
In 1987 an Aboriginal elder from the Gungalida
people in Queensland was found to have contravened the Fauna
Conservation Act 1974 (Qld) by taking bush turkey. The
plaintiff had argued that his actions were carried out in
accordance with his customary entitlement to take the animal. The
High Court's decision was based on whether the action by the
Aboriginal man had contravened The Criminal Code (Qld)
through an 'offence relating to property'.(18) This case shows how
the imposition of state conservation laws can sometimes provide
impediments to Indigenous peoples' ability to exercise their
customary rights regarding exploitation of particular
species-rights that are based on the accumulation of ecological
knowledge and customary practices.
The competing priorities and interests between
Indigenous customary hunting, fishing and gathering activities, and
conservation were among the issues considered in the Australian Law
Reform Commission's 1986 report on The Recognition of
Aboriginal Customary Laws. That report recommended some
guidelines to be incorporated into legislation in all
jurisdictions. These guidelines suggested:
-
- that priority is given to conservation over traditional hunting
and fishing activities
-
- that access is provided to Indigenous people to their
traditional lands for the purpose of hunting, gathering and
fishing
-
- that sea closures are provided to allow for traditional fishing
activities to be conducted in waters adjacent to Aboriginal land,
and
-
- that measures are developed for improved consultation with
Indigenous peoples, and for them to have greater control over land
and marine management.(19)
Challenges to recognising and protecting
Indigenous knowledge
Indigenous peoples have for a long time
advocated their wish to be recognised as having unique rights,
based on their distinct Indigenous status. While the focus in the
quest for Indigenous rights has been on land rights, Indigenous
peoples assert that they also have rights in the biological
resources on the lands, and in the knowledge they possess of these
resources.
Indigenous peoples are increasingly concerned
that their knowledge of the natural environment is being exploited.
They assert that the collection, screening, and patenting of plants
and plant products by pharmaceutical, cosmetic and other research
companies is being carried out without due regard for the rights of
the Indigenous holders and custodians of knowledge about biological
resources. This bioprospecting is, according to Indigenous claims,
mostly being carried out without the prior informed consent of the
custodians of knowledge, and with little or no provision for
financial returns to Indigenous communities.(20) Although
Indigenous peoples claim that their knowledge constitutes part of
their 'intellectual property rights', the protection of biological,
or other forms of Indigenous knowledge does not fall within the
scope of existing intellectual property laws.
Indigenous knowledge of medicinal and other
plants and practices is a significant contributor to scientific
research and development in pharmaceuticals, cosmetics, foodstuffs,
agricultural products, and a wide range of other biologically based
products and processes. The challenge is therefore to develop a
system which satisfies the needs of industry, achieves conservation
goals, and also recognises and protects the rights of Indigenous
peoples.
An effective system would incorporate provision
for financial and other benefits that flow from the uses of
Indigenous knowledge and practices to be shared equitably with the
Indigenous knowledge holders and innovators. An equitable benefit
sharing arrangement would recognise and protect Indigenous peoples'
rights, encourage economic self-sufficiency for Indigenous peoples,
and also provide incentives for the conservation and sustainable
uses of biological diversity. The development of this kind of
system poses a challenge in terms of how it might recognise the
distinct property rights held by Indigenous peoples in their
knowledge.
The collective nature of Indigenous rights makes
it difficult to establish the extent of, and the precise social and
political dimensions of rights and interests. Establishing the
legitimacy of claims to knowledge and biological resources will
require clarification of clan, family and other group rights and
interests in such items.
The antiquity of customary systems of knowledge
and practices, and their oral transmission through generations also
present challenges to legislators and administrators in designing
regimes for the recognition and protection of these knowledge
systems.
Rules governing secrecy also pose challenges to
those faced with the task of deciding Indigenous peoples' claims in
knowledge. The complex nature of land tenure systems, and the
dispersal and dispossession of Indigenous peoples resulting from
the history of colonisation and dispossession impose constraints on
identifying Indigenous biodiversity related knowledge systems.
Land clearances and erosion arising from
farming, agriculture and urban development have led to an enormous
loss of Indigenous customary knowledge and practices relevant to
biodiversity. These, combined with a loss on biodiversity, and
changes in growing patterns and habitats of flora and fauna, means
it is difficult for Indigenous people to demonstrate their
exclusive rights to biological species, and knowledge of these.
With the history of colonisation and
dispossession, Indigenous peoples have adapted to modern
technologies, lifestyles and cultural systems. This makes it
difficult to identify knowledge that is derived from distinctly
Indigenous traditional systems and which maintained according to
traditional or customary practices, as distinct from knowledge that
is everyday, 'common' knowledge.
Finally, the dispersed nature of decision making
and authority structures in Indigenous societies will present
difficulties when considering the introduction of measures for
distributing benefits obtained from the uses of Indigenous
knowledge back to those communities in which the knowledge holders
belong. It would be difficult to identify a unit or group that has
the traditional authority to make decisions about uses of knowledge
and practices, and responsibility for distributing any financial or
other benefits that flow from the uses of these.
In order to explore some possible solutions to
protecting Indigenous knowledge in biodiversity, it is useful to
review the context of international and Australian developments
within which solutions might be proposed.
International developments provide a potential
framework for discussions about the recognition and protection of
Indigenous knowledge.(21)
Intellectual property rights
The effective implementation of the
Convention on Biological Diversity requires the
development of a clear framework for clarifying rights and
responsibilities in biodiversity. It is argued that one factor in
the loss of biodiversity is the 'lack of clear property rights
governing ownership and access to biodiversity'. To address this,
'in many cases better specification of property rights can
encourage the holders of such rights to be responsible and
accountable for the sustainable management of the resources in
their control'.(22) Property rights that determine the management
of biodiversity 'need to be well specified, context-specific and
enforceable'.(23)
Consideration of property rights in biological
resources is of importance to Indigenous peoples, who claim that
their cultures and livelihoods depend on these resources, and that
their knowledge and practices relating to the natural environment
constitute part of their intellectual property. The problem with
this is that existing intellectual property rights (IPR) systems do
not provide for recognition of Indigenous peoples' collective
rights in knowledge relating to biodiversity. IPR systems protect
only material forms, and not the intangible ideas or knowledge
associated with these.(24) While the Copyright Act 1968
has been the subject of much of the discussion concerning
Indigenous peoples' intellectual property rights, the Patents
Act 1990 is more relevant to Indigenous rights in biodiversity
related knowledge.
To obtain patent rights, a product should be
novel and not merely a 'discovery' of something that occurs
naturally. It must also be 'non-obvious', resulting from the
transformation of a natural substance using some technological
process. Finally, as with other intellectual property laws, patents
are used to confer property rights on individuals or
corporations-and do not provide for the kinds of group, or
collective rights that Indigenous peoples hold in knowledge and
practices. There is also a fixed period for protection under patent
laws, usually up to 20 years, which again does not provide for
Indigenous knowledge that is often the result of millennia of
innovation and transmission.
It is possible for 'joint inventors' to take out
a patent. In this sense, it is possible in principle for Indigenous
people, whose contributions based on their traditional knowledge
and practices are significant components of patentable inventions
and processes, to be included as 'joint inventors'. However, in
practice, the particular types of knowledge and innovations of
Indigenous peoples are not recognised for the purposes of the
Patent Act.(25)
Other international developments
International standard setting developments and
other processes provide a useful context within which measures for
recognising and protecting Indigenous knowledge can be
considered.
The Draft Declaration on the Rights of
Indigenous Peoples being developed by a working group of the
United Nations Commission on Human Rights provides, at Article 24,
for Indigenous peoples' rights to 'their traditional medicines and
health practices, including the right to the protection of vital
medicinal plants, animals and minerals'. Article 29 provides that
Indigenous peoples are 'entitled to the recognition of the full
ownership, control and protection of their cultural and
intellectual property'. These peoples, this Article says:
...have the right to special measures to
control, develop and protect their sciences, technologies and
cultural manifestations, including human and other genetic
resources, seeds, medicines, knowledge of the properties of fauna
and flora, oral traditions, literatures, designs and visual and
performing arts.
International Labour Organisation Convention
169 ('ILO 169') also contains various provisions (e.g.
Articles 4, 5, 8, 13 and 23) relevant to the protection of
Indigenous peoples' cultures, environments, and religious and
political systems.
One international development that provides
specific opportunities for introducing measures to protect
Indigenous knowledge is the Convention on Biological
Diversity, mentioned above. Article 8(j) of this Convention
encourages countries, '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 Conference of Parties to the Convention on
Biological Diversity includes on its agenda for its annual
meetings, consideration of Article 8(j) and related provisions.
This work includes attempts to clarify, and define the nature and
scope of Indigenous knowledge, innovations and practices, and the
collection and synthesis of case studies.(26) In recognition of the
importance of Article 8(j) and Indigenous peoples' interests, in
addition to discussions of this subject at annual meetings of the
Conference of Parties, a workshop on 'traditional knowledge' was
held in Madrid in November 1997. At the fourth session of the
Conference of Parties that was held in Bratislava, Republic of
Slovakia in May 1998, a decision was made that there be an ad hoc,
open ended intersessional working group to further consider Article
8(j) and related provisions.
While the Convention on Biological
Diversity provides a potentially useful opportunity for
countries to introduce new measures to recognise and protect
Indigenous knowledge and innovations, it also imposes some
constraints. The requirement that implementation of Article 8(j)
should be subject to national legislation may be problematic for
Indigenous peoples, especially if existing national laws take
precedence, and where these might contravene, or place limitations
on any measures that may be introduced under 8(j). Conversely, the
Convention may encourage countries to introduce special national
laws beneficial for the protection and conservation of Indigenous
knowledge, traditions, innovations and practices.(27)
The use of the term 'traditional lifestyles' in
the wording of Article 8(j) may also be interpreted to imply the
exclusion of many Indigenous communities who have not retained
their direct connections with lands and resources, but who wish to
protect and preserve their knowledge and innovations.(28)
Another UN development important to the
recognition and protection of Indigenous knowledge is the study of
Indigenous peoples' culture and heritage by Special Rapporteur
Erica-Irene Daes. This study is useful in its emphasis on the close
interdependence in Indigenous societies between land, environment,
and heritage. Daes suggests that to Indigenous peoples, 'cultural
property', 'intellectual property', and biological resources are
all components of their 'collective heritage'. She states:
...Indigenous peoples do not view their heritage
in terms of property at all-that is, something which has an owner
and is used for the purpose of extracting economic benefits-but in
terms of community and individual responsibility. Possessing a
song, story or medicinal knowledge carries with it certain
responsibilities to show respect to and maintain a reciprocal
relationship with the human beings, animals, plants and places with
which the song, story or medicine is connected. For indigenous
peoples, heritage is a bundle of relationships, rather than a
bundle of economic rights.(29)
Although this report implies that Indigenous
peoples are uniformly opposed to the commodification of heritage,
in practice some Indigenous peoples may regard elements of their
heritage as common property, and seek opportunities to reap
benefits from its uses by the wider community. Any benefit sharing
arrangements that may be introduced will need to provide for the
diversity of views and approaches among Indigenous peoples
regarding the economic values of their heritage.
Other developments in environment and
conservation
A range of other developments in international
standard setting relating to environment and conservation have
particular relevance to the consideration of measures for
protecting Indigenous biodiversity related knowledge. These
instruments and statements are especially useful in that they build
up a body of principles relevant to the recognition and protection
of Indigenous peoples' knowledge systems, and may ultimately
influence law and policy development. The most important of these
international developments have resulted from the 1992 United
Nations Conference on Environment and Development (UNCED) held in
Rio de Janeiro, Brazil. In addition to the Convention on
Biological Diversity, other outcomes from UNCED are the
Rio Declaration, Agenda 21, and the Statement
of Forest Principles.
Agenda 21 provides a charter and
program for action for sustainable conservation and development
into the next century. Chapter 26 of Agenda 21 on
Recognising and Strengthening the role of Indigenous Peoples and
their Communities contains some important provisions directly
relevant to Indigenous knowledge and management of biodiversity.
For example Section 26.3(iii) states that Governments should, 'in
full partnership with Indigenous people and their communities',
recognise Indigenous peoples' 'values, traditional knowledge and
resource management practices with a view to promoting
environmentally sound and sustainable development'. Section 26.6(a)
contains a program statement to implement this principle.
The Rio Declaration states at
Principle 22 that:
Indigenous people and their communities, and
other local communities, have a vital role in environmental
management and development because of their knowledge and
traditional practices. States should recognise and duly support
their identity, culture and interests and enable their effective
participation in the achievement of sustainable development.
Another outcome from UNCED was the establishment
of the Commission on Sustainable Development (CSD) within the
United Nations Environment Programme. An ad hoc Inter-governmental
Panel on Forests within the CSD considered a range of matters
concerning sustainable forest management, including the role of
'traditional forest related knowledge', a significant area of work
relevant to Indigenous peoples' rights to ecological knowledge.
In 1994, the United Nations released a final
report on Human Rights and the Environment, which had been prepared
by a Special Rapporteur commissioned by the United Nations
Sub-Commission on Prevention of Discrimination and Protection of
Minorities. As an appendix to this report, a draft Declaration
on the Right to the Environment includes provisions relevant
to the protection of Indigenous knowledge. Paragraphs 6 and 13
provide generally for biodiversity conservation, and for equitable
benefit sharing from environmental conservation. Paragraph 14
provides for Indigenous peoples' rights:
Indigenous peoples have the right to control
their lands, territories and natural resources and to maintain
their traditional way of life. This includes the right to security
in the enjoyment of their means of subsistence....Indigenous
peoples have the right to protection against any action or course
of conduct that may result in the destruction or degradation of
their territories, including land, air, water, sea-ice, wildlife or
other resources.(30)
These developments provide an important body of
statements and principles that can influence international laws and
policies to recognise and protect the customary knowledge and
practices of local and Indigenous peoples.(31)
Indigenous peoples' statements and
declarations
The Draft Declaration on the Rights of
Indigenous Peoples referred to above was developed mostly by
Indigenous peoples and their representatives during many years of
meetings of the UN Working Group on Indigenous Peoples.
Over recent years there has been a series of
statements and declarations developed by, or on behalf of
Indigenous peoples which provide specifically for their rights in
cultural and intellectual property, and knowledge, innovations and
practices. These developments generally provide an important
emerging 'soft law' of principles for Indigenous rights which
ultimately must serve to guide, and hopefully influence , law and
policy.(32)
Approaches to protecting Indigenous
knowledge
Earlier in this paper mention was made that
conventional intellectual property rights systems provide an
inadequate means of protecting Indigenous knowledge. Alternatives
to intellectual property rights systems provide greater
opportunities for recognition and protection of Indigenous rights
relating to biological and ecological knowledge, innovations and
practices. Some of these alternative approaches are surveyed
here.(33)
Benefit sharing approaches,
contracts and agreements
The search for, collection and use of products
and derivatives from biological diversity takes its toll on the
environment. Bioprospecting also presents challenges for the
inclusion of provisions that recognise and protect the intellectual
property rights of the traditional users and holders of biological
knowledge and practices.
Where bioprospecting is carried out, by using
the proceeds from these activities to develop mechanisms for
equitable sharing of benefits by Indigenous knowledge holders, it
may be possible to achieve the twin goals of conservation, and the
protection of the rights of knowledge holders and innovators.(34)
This type of approach would be consistent with the implementation
of Article 8(j) and related provisions of the Convention on
Biological Diversity. There are many examples of arrangements that
have been introduced with the aim of benefit sharing for use of
biodiversity. These types of systems are considered to be more
effective than conventional intellectual property rights systems,
as they offer greater flexibility and are not constrained by the
limitations of IPR systems discussed above.
Benefit sharing arrangements that have been
developed include various forms of contracts, agreements, and other
mechanisms aimed at developing partnerships between different
interest groups, and providing compensation and benefits to
knowledge holders.(35) The advantages of contractual arrangements
include their capacity to 'be designed to fit any conceivable
relationship between collaborators', to 'define the types and
amounts of benefits', and to be able to 'target recipient
populations and conservation objectives'. The benefits offered by
contractual arrangements also include the provision of royalties
and advance payments.(36)
One example of an approach based on contractual
arrangements is what is known as a system of International
Co-operative Biodiversity Groups (ICBGs). These have been developed
from an 'integrated conservation and development program' wherein
'appropriately designed natural products research and development
can bring both short and long term benefits to the countries and
communities that are the stewards of the genetic resources'. The
proponents of this system state that 'sharing benefits from both
the research process and from any drug discoveries that are made
down the road creates incentives for conservation and provides
alternatives to destructive use'. The ICBG program includes, among
other advantages, 'equitable intellectual property and benefit
sharing arrangements'.(37) These systems are being developed in
Peru, and in Nigeria.(38)
Another example of a contract is an agreement
that was developed between the giant pharmaceutical company Merck
& Co. Inc., and the National Biodiversity Institute known as
INBio, a non-profit research organisation established by the
Government of Costa Rica. In this agreement Merck provides up-front
funding (an initial $US1 million) to INBio for screening plants for
possible AIDS cures. INBio will receive a share of any royalties
that may result from successful product development. A proportion
of the up-front payment (10 per cent), and 50 per cent of any
royalties will be fed directly into conservation activities.(39)
This arrangement, which is primarily a contract for the screening
of biodiversity, is celebrated by its supporters for its
flexibility and the opportunities it provides for developing
negotiated 'guidelines for collecting which can be adapted to meet
the interests of both parties in a way which is unique to each
particular situation'.(40)
The advocacy organisation Rural Advancement
Foundation International (RAFI) has criticised the Merck/INBio type
of bilateral bioprospecting contract, arguing that they 'are not
likely to provide adequate compensation to either indigenous
peoples or developing countries unless they are made within the
framework of broader intergovernmental arrangements'.(41) While the
Merck/INBIo agreement in Costa Rica is often described as a model
partnership arrangement between a pharmaceutical company and a
government, it may not be especially useful for considering the
issue of Indigenous rights, since, as the authors of one report
point out, 'Costa Rica has almost no indigenous people'. These
writers go on to say:
The agreement between Merck and INBio includes
training individuals from the working class as parataxonomists, but
they approach the forest as employees with institutional
educations, not as traditional peoples with indigenous knowledge.
As a result, there are no issues of patent rights or land ownership
to consider.(42)
Another example of a contractual arrangement is
one that has been developed by Shaman Pharmaceuticals Inc., which
derives its research from collaboration with Indigenous peoples and
the uses of their traditional knowledge. This company established a
non-profit independent organisation called the Healing Forest
Conservancy, which will receive a proportion of the profits,
obtained from Shaman's products. Healing Forest Conservancy
'supports biodiversity conservation and protection of cultural
diversity and will independently determine how resources can best
assist indigenous communities and organisations'.(43)
Other types of agreements include 'know-how'
licenses, material transfer agreements, trust fund mechanisms,
conservation compensation initiatives, and an 'intellectual
integrity framework'. These types of arrangements all provide
alternatives to intellectual property rights systems, and offer, to
varying degrees of effectiveness, opportunities to develop
mechanisms for equitable sharing of benefits from bioprospecting
with Indigenous knowledge holders and innovators.(44)
Rights based
approach
One approach that offers scope for recognition
of Indigenous knowledge is a system called protection of
'traditional resource rights' by its proponents. This approach is
based on the systematic use by Indigenous peoples of all the
existing instruments, laws and policies relating to human rights,
land, heritage, culture, environment and intellectual property.
Combined with the introduction of reforms to these, as well as the
development and implementation of measures such as contracts,
agreements and protocols, this approach provides Indigenous peoples
with a rights based framework in which to pursue their wish for
recognition and protection of intellectual property rights in
knowledge and biodiversity.
The principal developer of this approach,
British ethnobotanist Darrell Posey, has written extensively on the
ways in which relevant provisions in the Rio Declaration, the
Convention on Biological Diversity, and a wide range of human
rights and other instruments, in addition to emerging Indigenous
and other standards and statements can be used by Indigenous
peoples to achieve better recognition and protection for their
intellectual property rights.(45)
Implementing the Convention on
Biological Diversity
In 1996 the Commonwealth, state and territory
governments endorsed a National Strategy for the Conservation
of Australia's Biological Diversity. Action 1.8.2 of this
Strategy is to:
Ensure that the use of traditional biological
knowledge in the scientific, commercial and public domains proceeds
only with the cooperation and control of the traditional owners of
that knowledge and ensure that the use and collection of such
knowledge results in social and economic benefits to the
traditional owners. This will include:
-
- encouraging and supporting the development and use of
collaborative agreements safeguarding the use of traditional
knowledge of biological diversity, taking into account existing
intellectual property rights; and
- establishing a royalty payments system from commercial
development of products resulting, at least in part, from the use
of traditional knowledge.
Other environment related
developments
A number of other processes within the
Commonwealth Government are relevant to biodiversity and Indigenous
knowledge. Various developments arising from the 1992 United
Nations Conference on Environment and Development provide a body of
statements and principles recognising Indigenous knowledge. The
1992 National Strategy for Ecologically Sustainable
Development included objectives relevant to the incorporation
of Indigenous perspectives in environment and conservation
management.
The 1993 Coastal Zone Inquiry conducted
by the former Resource Assessment Commission included in its
considerations Aboriginal and Torres Strait Islander issues. The
resulting report recommended the enactment of Commonwealth
legislation which, among other things:
-
- recognises Indigenous peoples' right to hunt, fish, gather and
engage in other cultural practices according to tradition or
custom
-
- provides mechanisms whereby the exercise of traditional rights
to access and use of resources can be negotiated with other
interests or interested parties (conservation, pastoral, etc),
and
-
- provides mechanisms to ensure substantive Indigenous peoples'
involvement in, and wherever possible control of, the management of
their traditional environments and resources.(46)
Most of these were initiatives developed and
introduced by previous governments. It remains to be seen whether
they are to remain on the agenda of the present Government.
A Commonwealth State Working Group on Access to
Australia's Biological Resources is developing a proposal for a
framework regulating access to Australia's biological resources. A
discussion paper released in October 1996 proposes a nationally
consistent approach to managing access, and advocates a preferred
'multi-purpose contract system'. This system is based on the
development of contracts between those wishing to collect
biological resources, and the relevant owners of these resources.
According to the report, these types of contracts would have the
flexibility to be designed to suit specific circumstances and
conditions, as well as the requirements of laws and policies in the
particular jurisdictions in which they apply. Among the purported
benefits of this system is that it would 'ensure an equitable
return to the jurisdiction of any financial benefits arising from
exploitation of the resource, and to share benefits and other
information about the resource which may assist its further
conservation and management'.(47)
This report does not deal adequately with
questions of ownership and control, preferring instead to limit its
consideration to matters of access only.(48) It also gives
inadequate consideration of the rights and interests of Aboriginal
and Torres Strait Islander peoples in biological resources. Systems
that provide return of benefits to jurisdictions will not
necessarily include provisions for benefit sharing by Indigenous
peoples within those jurisdictions.
Another discussion paper released recently
entitled Reform of Commonwealth Environment Legislation
discusses proposals to 'comprehensively reform the Commonwealth's
environmental law regime', with the objective to 'deliver better
environmental outcomes in a manner that promotes certainty for all
stakeholders and minimises the potential for delay and
intergovernmental duplication'.(49) Among the measures proposed is
a Biodiversity Conservation Act, which will replace a number of
separate conservation acts, and 'result in an improved, integrated
framework for the conservation and sustainable use of Australia's
biodiversity'.(50) There have been some concerns expressed that the
proposed new Biodiversity Conservation Act will not incorporate any
'last resort' provisions for environmental protection by the
Commonwealth, as are presently available under the existing
World Heritage Properties Conservation Act 1983, which is
among those Acts the proposed Biodiversity Conservation Act would
replace.(51)
A further problem with the proposals, as
detailed in the discussion paper, is the absence of any references
to those components of either the Convention on Biological
Diversity, or the National Strategy for the Conservation
of Australia's Biological Diversity that deal with the
preservation of Indigenous knowledge and practices. The only
reference that has implications for Indigenous knowledge relates to
controls over access to biological resources.
The discussion paper states that the proposed
Biodiversity Conservation Act will empower the Commonwealth
Government to control access to biological resources by 'allowing
regulations to be made in relation to the management of access to
biological resources on Commonwealth lands and in marine
environments under Commonwealth control'.(52) The concern with this
is that there is not an adequate discussion, or framework
proposed-either in this discussion paper, or in the discussion
paper on access to biological resources -for the protection of
Indigenous knowledge, and the recognition and protection of
Indigenous rights in regard to access, control and ownership of
biological resources, whether on Commonwealth lands or
elsewhere.
Recommendations for greater control by, and
participation of Aboriginal and Torres Strait Islander people in
the management of environment and conservation, including national
parks and protected areas have been made by many reports over the
decades. Some noteworthy examples of these reports include the
comprehensive and significant 1991 national report of the Royal
Commission Into Aboriginal Deaths in Custody (especially
Recommendation 315).(53)
Despite this proliferation of reports and
recommendations, there has been relatively little in the way of
implementing environment and biodiversity related recommendations.
Another area in which recommendations and reports abound in large
proportion relative to their implementation is that of intellectual
property rights-which are also relevant to the protection of
Indigenous knowledge.
Intellectual property rights
There has been some attention focussed recently
on the issue of Indigenous intellectual property rights. This has
largely been prompted by the release by the former Keating
Government in 1994 of an issues paper called Stopping the
Rip-Offs: Intellectual Property Protection for Aboriginal and
Torres Strait Islander Peoples. To formulate its response to
this paper, the Commonwealth Government established an
interdepartmental committee chaired initially by the
Attorney-Generals Department, and subsequently by the Department of
Communications and the Arts. As a part of this process, the
Aboriginal and Torres Strait Islander Commission (ATSIC) has sought
Indigenous views regarding the recognition and protection of
intellectual property rights.
The Stopping the Rip-Offs paper stated
that its aim was to consider only the protection of what was termed
'arts and cultural expressions', and these only insofar as they
related to the Copyright Act 1968. The principal focus was
on finding suitable remedies to the appropriation of Aboriginal art
that had been occurring for decades. The effectiveness of the
Copyright Act in preventing these appropriations was a central
consideration. The government view therefore expressly excluded the
protection of Indigenous knowledge in biodiversity from this
process.
Notwithstanding these limitations, ATSIC
advocated that since Indigenous peoples considered that their
intellectual property rights did extend to knowledge in
biodiversity, then any reforms to protect Aboriginal and Torres
Strait Islander intellectual property must necessarily also include
consideration of knowledge and biodiversity. ATSIC's involvement in
the formulation of a response to the Stopping the Rip-Offs
paper therefore adopted a broader view, consistent with Indigenous
peoples' aspirations.
ATSIC established an Indigenous Reference Group
comprising Aboriginal and Torres Strait Islander people with
expertise and experience in cultural heritage, the arts, and law,
to provide advice and to manage the consultations with Indigenous
peoples. ATSIC also funded the Australian Institute of Aboriginal
and Torres Strait Islander Studies (AIATSIS) to further develop an
Indigenous perspective. In 1997, AIATSIS released a discussion
paper entitled Our Culture, Our Future: Proposals for the
Recognition and Protection of Indigenous Cultural and Intellectual
Property. This paper includes consideration of possible
reforms, legislative, policy and administrative to protect
Indigenous rights in knowledge and biodiversity.
The final report of Our Culture, Our
Future, released in mid-1998, makes some 115 recommendations
covering a very wide range of law, policy, program and
administrative subject areas. These recommendations include
suggesting amendments to legislation dealing with cultural and
intellectual property rights, land, environment and heritage. They
also advocate a range of administrative and common law measures.
Arguably the most far reaching recommendation calls for the
introduction of sui generis legislation that specifically
provides for recognition and protection of Aboriginal and Torres
Strait Islander peoples' cultural and intellectual property
rights-including rights in biodiversity and traditional
knowledge.
Reforms to existing intellectual property rights
laws can extend the capacity of these laws to recognise and protect
intangible cultural expressions such as knowledge, and to shift the
balance in these laws from fostering commercial innovation, towards
protecting cultural rights. The introduction of moral rights
provisions to the Copyright Act is a step towards these types of
reforms. Similar moral rights provisions could also be considered
for patent laws.
Native title and regional
agreements
The Mabo decision and the Native
Title Act 1993, as some writers have argued, provide
an impetus for the recognition of Aboriginal and Torres Strait
Islander peoples' rights in, and knowledge and practices regarding
environmental management, and the incorporation of these into
existing management regimes.(54) Flowing from the recognition of
common law rights in land, both the Mabo decision and the
Native Title Act 1993 also establish principles for the
recognition of other types of Indigenous customary property rights,
including rights in knowledge.(55) The content of native title is
defined as being based on the laws and customs of the Indigenous
claimants although the precise nature of this content will
ultimately be determined in the courts.
The content of native title 'has its origin in
and is given its content by the traditional laws acknowledged by
and the traditional customs observed by the indigenous inhabitants
of a territory'(56), and may be shown to include Indigenous
knowledge of country. Since native title is defined according to
the customs and traditions of the claimant group, this by
definition must imply the inclusion of Indigenous knowledge as a
form of intellectual property, because to Indigenous peoples, their
'knowledge of the properties of fauna and flora' is an important
component of customary laws.(57)
Another aspect of the native title process that
potentially has the capacity to provide recognition of Indigenous
rights in knowledge and biological diversity, is the process of
negotiated agreements, known as regional agreements or Indigenous
Land Use Agreements. Negotiated agreements may be developed either
within the provisions of the Native Title Act (the Preamble and
Section 21), or as independent processes. Section 21 of the Native
Title Act provides a potential stimulus for the negotiated
settlement of claims, and a possible mechanism for the achievement
of a measure of autonomy for Indigenous peoples.
A regional agreement may include negotiated
arrangements covering virtually any aspect of government, delivery
of services, access to, and management and control of areas,
resources and sites, protocols regarding research, survey and
development activities, and so on. They may also include negotiated
arrangements for the integration of Indigenous knowledge, and
customary uses and practices regarding land, environment, and
biological materials into land and environment management plans and
strategies.
A regional agreement 'denotes the concept of
equitable and direct negotiations between Indigenous peoples,
governments and other stakeholders in a region to recognise the
rights of Indigenous peoples and to protect them under a
contemporary legal system'. A regional agreement 'should not take
any pre-ordained form...[but]...'is a means for Indigenous peoples
to define our own solutions and obtain legal, administrative and
political recognition for such definitions'.(58) One working
definition of regional agreements is as:
...a way to organise policies, politics,
administration, and/or public services for or by an Indigenous
people in a defined territory of land (or of land and sea).(59)
A regional agreement could, in principle,
provide for the recognition of Indigenous peoples' rights to
control their own destinies.(60)
Discussions about Australian regional agreements
are influenced by Canadian developments such as the James Bay and
Northern Quebec Agreements. These types of agreements often include
regimes for the management of environment and heritage. One
commentator has suggested that 'the comprehensive claims process
underway in Canada is often touted as the solution to issues of
Indigenous land management, self-determination, management of
public sector programs and services, and native title in
Australia'.(61)
In Australia, the development of regional
agreements is currently focussed on processes, rather than on the
likely content of such agreements. The present amendments to the
Native Title Act include several provisions relating to Indigenous
Land Use Agreements (ILUAs). The term Indigenous land use
agreements:
encompasses agreements which may provide for
recognition or transfer of the ownership of country which may or
may not be coupled with the authorisation of mining, pastoral or
other developmental activities by indigenous and non-indigenous
interests acting jointly or separately. It covers vesting and joint
management of parks and reserves and agreements for the
co-existence of Aboriginal and non-Aboriginal interests or
activities in forests and offshore and internal waters.(62)
Indigenous peoples and their supporters have
argued that such land use agreements are the most appropriate way
to develop shared approaches to managing access and other rights
and responsibilities over pastoral leaseholds. These ILUA proposals
provide more detail than the Section 21 provision in the Native
Title Act, since they offer a 'flexible system to assist in the
making of agreements which may affect native title', and 'represent
a lasting and economical means of resolving native title
issues'.
The main concerns in current negotiations
regarding agreements are with the 'regulation of resource
extraction and commercial use of the land', and as noted by one
writer, 'conservation values are a latecomer to the equation, but
of increasing influence and importance', since 'efficient
exploitation and management of resources is one of the principal
factors that has led to the need for comprehensive negotiated
settlements whether native title is recognised or not'.(63)
Given the diversity of possible arrangements
that may be relevant to the potential inclusion of Indigenous
knowledge and practices, it is feasible to cite many examples of
such arrangements. The Cape York Heads of Agreement, and the
agreement between Quandamooka Land Council and Redland Shire in
Queensland, are just two examples of agreements that have specific
references to Indigenous knowledge, Indigenous cultural and
intellectual property, or environmental management.(64)
Other contracts and agreements
Contracts and agreements can potentially offer
powerful mechanisms for including recognition and protection of
Indigenous knowledge and practices. Contracts that have been
developed between the pharmaceutical company Amrad and some
Aboriginal representative organisations for bioprospecting may be
models for a wider national approach.
The Commonwealth Government's Indigenous
Protected Areas Program is another initiative which offers a
potential basis for developing systems for the recognition and
protection of Indigenous knowledge and practices relating to
environmental conservation and management. This program aims to
develop partnerships between Indigenous landholders and government
conservation agencies. Although still in its developmental stage,
this program has the potential for incorporating in such
partnerships agreed strategies for the protection and appropriate
management of biodiversity related knowledge, and for equitable
sharing of benefits with the Indigenous knowledge holders.(65)
Jointly managed national parks also provide good
models for incorporating and protecting Indigenous knowledge,
innovations and practices. One example is Uluru-Kata Tjuta National
Park, which is a model of a negotiated sharing arrangement between
the Aboriginal traditional owners, and conservation management
agencies.(66) The management plan for this park incorporates
Aboriginal traditional knowledge and environmental management
practices, based on the principle of Tjukurpa, which is the custom
and law of Anangu people, the parks traditional Aboriginal
owners.(67)
Land and heritage
Federal legislation such as the Aboriginal
Land Rights Act (NT) 1976 (Cwlth) and the Aboriginal and
Torres Strait Islander Heritage Protection Act 1986 provide
potential avenues for incorporating reforms to include protection
of Indigenous knowledge. Relevant land and heritage laws in state
and territory jurisdictions may also provide opportunities for
recognising Indigenous knowledge.
Existing Commonwealth heritage protection
legislation is limited in its capacity to protect Indigenous
knowledge, as it protects only physical heritage. This legislation,
the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984 has recently been the subject of considerable
attention in the Hindmarsh Island case, which illustrated some
problems regarding protection of secret knowledge. There has been
considerable work carried out in recent years to review and assess
the effectiveness of this Act. One such review, completed by the
Hon. Elizabeth Evatt in 1996, made some recommendations to improve
the operation of this Act.(68) These recommendations included
advocating the implementation of measures to recognise and protect
Indigenous secret and sacred knowledge relating to heritage. The
Act is presently the subject of proposals for reform, which will,
if implemented, effectively devolve responsibility for decision
making over Indigenous heritage to state and territory
governments.
Common law solutions
The potential for recognition and protection by
statute law is given support by a number of common law cases in
recent decades that have implications for recognition of Indigenous
customary law and traditional knowledge. Some of these have been
specifically brought under the Copyright Act, and the resulting
decisions have gone some way toward extending the interpretation of
copyright law to accommodate Indigenous cultural perspectives.
Among the cases most significant for the potential recognition and
protection of Indigenous knowledge, practices and innovations
relating to biodiversity are Milirrpum v Nabalco Pty. Ltd.
(1971), Foster v Mountford (1976), and Milpurruru v
Indofurn Pty. Ltd. (1995). These are discussed in Research
Paper No. 20 and elsewhere.(69)
Administrative and policy
reforms
A range of administrative reforms are suggested
in the report Our Culture, Our Future, which could provide
protection for Aboriginal and Torres Strait Islander peoples'
cultural and intellectual property rights. These include measures
such as a Public Domain Royalties System, and Cultural
Contracts.
Integrating different knowledge systems:
Indigenous knowledge and western science
One of the challenges to law and policy for the
recognition and protection of Indigenous knowledge is to develop
ways in which there can be an integration, or a harmonising of
Indigenous biological and environmental knowledge and practices
with western scientific knowledge. In this way, rather than being
considered as conflicting systems, Indigenous knowledge systems and
western scientific knowledge can be combined in a way which
utilises the characteristics of two different systems in a
complementary, mutually reinforcing way. Such an integrated
knowledge system can be developed in order to pursue mutual goals
such as land and ecosystem management.
There are many examples of ways in which the
integration of Indigenous knowledge systems and western scientific
approaches can be integrated. These include ecological, botanical
and faunal surveys using Indigenous knowledge, and the
incorporation of Indigenous knowledge and practices regarding land
and environmental management into national parks, and in the
development of strategies for managing a variety of ecosystems such
as rangelands, wetlands, and marine environments. The development
of programs aimed at establishing Indigenous protected areas, and
land and environment conservation activities such as landcare
regimes are also ways in which Indigenous and non-Indigenous
knowledge and practices can be harmonised.
The recognition and protection of Indigenous
peoples' rights in their knowledge, innovations and practices
relating to biodiversity is assuming an increasing urgency.
Indigenous knowledge makes a significant contribution to the
collection and screening of plant-related substances, and the
development of commercial products such as pharmaceuticals from
these. Often, however, the contribution made by Indigenous
knowledge, innovations and practices is unacknowledged, and little
or no financial benefits are returned to these knowledge holders
and innovators for their contribution.
The Convention on Biological Diversity
is the single most important international instrument that provides
potential for developing measures for recognition and protection.
Its provisions regarding benefit sharing are especially
important.
While conventional intellectual property rights
systems are largely ineffective in providing recognition and
protection for Indigenous knowledge, there are some other avenues
that have the potential to offer solutions.
Alternatives to intellectual property systems
offer the most productive opportunities, especially the
introduction of frameworks that provide specifically for the
recognition and protection of Indigenous knowledge.
Contractual arrangements, agreements and
partnerships for land and environment management and conservation
offer considerable potential for incorporating mechanisms for
recognition and protection of Indigenous knowledge, innovations and
practices relating to biological resources. In designing these
kinds of approaches, however, it is of primary importance to ensure
that they provide for Indigenous peoples to share equitably in
benefits derived from the wider uses of their knowledge,
innovations and practices. The risk is, as highlighted by the
Commonwealth State Working Group report, that the focus will be on
supporting the provision of benefits to states and other powerful
interest groups-at the expense of Indigenous peoples within state
jurisdictions.
State and territory laws and policies relevant
to conservation, and the recognition and protection of Indigenous
rights are diverse and ad hoc. For this reason, the Commonwealth
has an important role in developing a national approach to achieve
recognition and protection of Indigenous rights in biodiversity
related knowledge and practices, while at the same time providing
for the interests of conservation, and of industry.
This system, modelled on successful local and
international developments, could be developed to meet the
interests of all participants. It would provide for the recognition
and protection of Indigenous knowledge, innovations and practices,
enable bioprospecting to occur, with prior informed consent of
knowledge holders and custodians. It would provide for the
equitable sharing of benefits-both financial and non-financial with
knowledge holders and custodians, and it would provide incentives
for the conservation and sustainable management of biological
diversity.
-
- Commonwealth of Australia, Biodiversity and its value
(Biodiversity series, paper no. 1), Biodiversity Unit, Department
of the Environment, Sport and Territories, 1993, p. 5.
- Henrietta Fourmile, 'Protecting indigenous property rights in
biodiversity' in Ecopolitics IX: perspectives on indigenous
peoples' management of environment resources, conference
papers and resolutions, Northern Land Council, Darwin, 1996, pp.
37-42; Michael Blakeney, 'Bioprospecting and the protection of
traditional medical knowledge', European Intellectual Property
Review, vol. 19, no. 6, June 1997, p. 298.
- Sydney Morning Herald, Saturday 11 April, 1998.
- World Intellectual Property Organisation (WIPO), (ed),
Introduction to intellectual property: theory and
practice, Kluwer Law International, London, The Hague, and
Boston, 1997.
- Vandana Shiva and Radha Holla-Bhar, 'Intellectual piracy and
the neem tree', The Ecologist, vol. 23, no. 6, Nov/Dec.
1993, pp. 223-227; Vandana Shiva, Afsar H. Jafri, Gitanjali Bedi,
and Radha Holla-Bhar, The enclosure and recovery of the
commons: biodiversity, indigenous knowledge and intellectual
property rights, Research Foundation for Science, Technology
and Ecology, New Delhi, India, 1997, pp. 35-36.
- ibid., p. 37.
- ibid., pp. 35-36.
- Michael Blakeney, op. cit.; Henrietta Fourmile, 'Protecting
Indigenous property rights in biodiversity', Current Affairs
Bulletin, vol. 72, no. 5, Feb/Mar 1996, p. 38.
- ibid., also see Australian Institute of Aboriginal and Torres
Strait Islander Studies, Our culture, our future: proposals for
the recognition and protection of Indigenous cultural and
intellectual property, Canberra, 1997, p. 28; Henrietta
Fourmile, 'Protecting Indigenous intellectual property rights in
biodiversity', op. cit., p. 39; Michael Blakeney, 'Bioprospecting
and the protection of traditional medical knowledge', Paper
presented to the Symposium on Intellectual Property Protection for
the Arts and Cultural Expression of Aboriginal and Torres Strait
Islander Peoples', Perth, 1 October 1996, p. 2; Cheryl Jones, 'Who
owns traditional medicine?', The Canberra Times, 4 August
1996, p. 7.
- Michael Blakeney, 'Bioprospecting and the protection of
traditional medical knowledge', Paper presented op. cit., pp.
12-13.
- WIPO, op. cit., pp. 124-125.
- See for example Harriet Ketley, 'Cultural diversity versus
biodiversity', Adelaide Law Review, vol. 16, 1994, pp.
99-160.
- A. J. Brown, Keeping the land alive: Aboriginal people and
wilderness protection in Australia, The Wilderness Society and
the Environmental Defender's Office, Sydney, 1992.
- See for example, Howard Morphy, '"Now you understand": an
analysis of the way Yolngu have used sacred knowledge to retain
their autonomy', in Nicholas Peterson and Marcia Langton (eds),
Aborigines, land, and land rights, Australian Institute of
Aboriginal Studies, Canberra, 1983, pp. 110-133.
- Desmond Sweeney, 'Fishing, hunting and gathering rights of
Aboriginal peoples in Australia', UNSW Law Journal, vol.
16, no. 1, 1993, pp. 104.
- Gary D. Meyers, 'Aboriginal rights to the "profits of the
land": the inclusion of traditional fishing and hunting rights in
the content of native title', in Richard H. Bartlett and Gary D.
Meyers (eds), Native title legislation in Australia, The
Centre for Commercial and Resources Law, The University of Western
Australia and Murdoch University, Perth, WA, 1994, p. 215; Also see
Gary D. Meyers, 'Implementing native title in Australia: The
implications for living resources management', University of
Tasmania Law Review, vol. 14, no. 2, Oct. 1995, pp. 1-28;
Graeme Neate, 'Looking after country: Legal recognition of
traditional rights to and responsibilities for land', UNSW Law
Journal, vol. 16, no. 1, (1993), pp. 161-222.
- Sweeney, op. cit; Maureen Tehan, 'Indigenous peoples, access to
land and negotiated agreements: experiences and post-Mabo
possibilities for environmental management', Environmental
Planning and Law Journal, vol. 14, no. 2, April 1997, pp.
114-134.
- Sweeney, op. cit., pp. 102-103.
- The Law Reform Commission, The recognition of Aboriginal
customary laws, summary report (Report no. 31), Canberra,
AGPS, 1986, pp. 75-81.
- There is an extensive, and growing body of literature on
Indigenous knowledge, intellectual property, and bioprospecting;
see for example Josephine R. Axt, M. L. Corn, M. Lee, and
D. M. Ackerman, Biotechnology, Indigenous peoples and
intellectual property rights, (Report for Congress, CRS 21),
Congressional Research Service, Washington, DC, USA, 16 April 1993;
Stephen B. Brush, 'Indigenous knowledge of biological resources and
intellectual property rights: the role of anthropology',
American Anthropologist, vol. 95, no. 3, 1993, pp.
653-671; Clark Peteru, Indigenous peoples' knowledge and
intellectual property rights consultation, working paper for
regional consultations, Suva, Fiji, 24-27 April 1995, Pacific
Concerns Resource Centre (Inc) and United Nations Development
Programme; The Crucible Group, People, plants and patents: the
impact of intellectual property on conservation, trade, and rural
society, International Development Research Centre, Ottawa,
Canada, 1994.
- See Michael Davis, 'Indigenous peoples and intellectual
property rights', Research paper no. 20, 1996-97,
Information and Research Services, Department of the Parliamentary
Library, Canberra, 30 June 1997.
- Michael Harte, 'Indigenous biological diversity and property
rights', Public Sector, vol. 19, no. 3, 1996, p. 6.
- ibid., p. 8.
- For details see Michael Davis, op.cit.
- Blakeney, op. cit, European Journal of Intellectual
Property, p. 299.
- See UNEP, Convention on Biological Diversity, Subsidiary Body
on Scientific, Technical and Technological Advice, Second Meeting,
Montreal, 2-6 September 1996, 'Knowledge, innovations and practices
of indigenous and local communities', Note by the Secretariat,
UNEP/CBD/SBSTTA/2/7, 10 August 1996; UNEP, Convention on Biological
Diversity, Conference of the Parties to the Convention on
Biological Diversity, Third Meeting, Buenos Aires, Argentina, 4-15
November 1996, 'Knowledge, innovations and practices of indigenous
and local communities: Implementation of Article 8(j)', Note by the
Executive Secretary, UNEP/CBD/COP/3/19, 18 September 1996.
- See for example the introduction by the Philippines of a law,
Executive Order No. 247, which regulates the research, collection
and use of biological and genetic resources.
- Donna Craig, 'Implementing the Convention on Biological
Diversity: Indigenous peoples' issues', Contribution to IUCN
Commission on Environmental Law, Technical Paper on Legal and
Institutional Issues Arising from the Implementation of the
Convention on Biological Diversity, presented to the Regional
Conference on the Biodiversity Convention, Manila, 6-8 June, 1994;
Lyle Glowka, Francoise Burhenne-Guilmin and Hugh Synge, in
collaboration with Jeffrey A. McNeely and Lothar Gundling, 'A guide
to the Convention on Biological Diversity', Environmental
policy and law paper no. 30, IUCN, Gland, Switzerland, 1994.
- N Economic and Social Council, 'Study on the protection of the
cultural and intellectual property of indigenous peoples, by
Erica-Irene Daes, Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities and
Chairperson of the Working Group on Indigenous Populations,
E/CN.4/Sub.2/1993/28, 28 July 1993. The final report by Daes
included an Annex containing Principles and Guidelines for the
Protection of the Heritage of Indigenous People,
E/CN.4/Sub.2/1995/26.
- UN Commission on Human Rights, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, Human rights and
the environment, Final Report by Mrs Fatma Zohra Ksentini,
Special Rapporteur, E/CN.4/Sub.2/1994/9, 6 July 1994.
- A useful survey of these developments is provided in Johanna
Sutherland, 'Representations of indigenous peoples' knowledge and
practice in modern international law and politics', Australian
Journal of Human Rights, vol. 2, no. 1, Dec. 1995, pp. 39-57.
- Michael Davis, op. cit:17-18; Darrell A. Posey and Graham
Dutfield, Beyond intellectual property: toward traditional
resource rights for indigenous peoples and local communities,
International Development Research Centre, Ottawa, Canada, 1996.
- Refer also to Davis, op. cit for additional details.
- See for example Joshua P. Rosenthal, 'Equitable sharing of
biodiversity benefits: agreements on genetic resources', in OECD,
Investing in biological diversity, 1996, pp. 253-274.
- ibid; see also the range of initiatives, including alternative
sui generis intellectual property rights systems discussed
in Rural Advancement Foundation International (RAFI),
Conserving indigenous knowledge: integrating two systems of
innovation, Ottawa, Canada, 1994, pp. 48-54.
- Rosenthal, op. cit., p. 253.
- ibid., pp. 254-255.
- See Brendan Tobin, 'Protecting collective property rights in
Peru: the search for an interim solution', unpublished paper
distributed at the fourth meeting of the Conference of Parties to
the Convention on Biological Diversity, Bratislava, 4 to 15 May
1998; also see UNEP, 'Synthesis of case-studies on benefit sharing:
note by the Executive Secretary', Conference of the Parties to the
Convention on Biological Diversity, Fourth meeting, Bratislava,
4-15 May 1998, UNEP/CBD/COP/4/Inf.7, 4 May 1998.
- Caroline Oddie, 'Bio-prospecting', Australian Intellectual
Property Journal, 9(1), Feb. 1998, pp. 18-19.
- ibid., p. 19.
- RAFI, op. cit., p. 49.
- Axt, et al., op. cit., p. 13.
- Oddie, op. cit. p. 19.
- Rosenthal, op. cit., pp, 270-271; RAFI, op. cit., pp. 48-54.
- ibid; Darrell A. Posey, Traditional resource rights:
international instruments for protection and compensation for
indigenous peoples and local communities, IUCN-The World
Conservation Union, Gland, Switzerland, 1996.
- Dermot Smyth, A voice in all places: Aboriginal and Torres
Strait Islander interests in Australia's coastal zone,
Consultancy Report to the Resource Assessment Commission's Coastal
Zone Inquiry, Canberra, November 1993, pp. 220-21.
- Commonwealth-State Working Group on Access to Australia's
Biological Resources, Managing access to Australia's biological
resources: developing a nationally consistent approach,
October 1996, p. 22.
- ibid.
- Commonwealth of Australia, Reform of Commonwealth
environment legislation: consultation paper, Foreword by
Senator the Hon. Robert Hill, Minister for the Environment,
Canberra, 1998, p. i.
- ibid., p. 21.
- Murray Hogarth and James Woodford, 'Fears for heritage as law
scrapped', The Sydney Morning Herald, Wednesday 11 March,
1998, p. 2.
- Commonwealth of Australia, Reform of Commonwealth
environment legislation: consultation paper, op. cit., p. 32.
- See for example Susan Woenne-Green, Ross Johnston, Ros Sultan
and Arnold Wallis, Competing interests: Aboriginal
participation in national parks and conservation reserves in
Australia, a review, Australian Conservation Foundation,
Melbourne, 1994.
- See Helen Ross, Elspeth Young, and Lynette Liddle, 'Mabo: an
inspiration for Australian land management', Australian Journal
of Environmental Management, vol. 1, no. 1, July 1994,
pp. 24-41; Maureen Tehan, 'Indigenous peoples, access to land
and negotiated agreements: experiences and post-Mabo possibilities
for environmental management', Environmental Planning and Law
Journal, vol. 14, no. 2, April 1997, pp. 114-134.
- Ross et al, op.cit., Lisa M. Strelein, 'Indigenous people and
protected landscapes in Western Australia', Environmental and
Planning Law Journal, vol. 10, no. 6, December 1993,
pp. 380-397.
- Richard Bartlett, 'The source, content and proof of native
title at common law', in Richard Bartlett (ed), Resource
development and Aboriginal land rights in Australia, The
Centre for Commercial and Resources Law, University of Western
Australia, Perth, 1993 p. 39, citing Brennan J in Mabo, p. 429.
- David Bennett, 'Native Title and Intellectual Property', in
Paul Burke (ed), 'Land, rights, laws: issues of native title',
Issues paper no. 10, Native Titles Research Unit,
Australian Institute of Aboriginal and Torres Strait Islander
Studies, Canberra, April 1996.
- Michael Dodson, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Third Report, AGPS, Canberra, 1995,
p. 110.
- Donna Craig and Peter Jull, 'Regional agreements-options for
Australian indigenous peoples', Draft Working Paper prepared for
the Office of the Aboriginal and Torres Strait Islander Social
Justice Commissioner, 1994, p. 4, cited in Dodson, op. cit.,
Meyers, Gary D., 'Aboriginal rights to the "profits of the land":
the inclusion of traditional fishing and hunting rights in the
content of native title', in Richard H. Bartlett and Gary D.
Meyers, eds, Native Title Legislation in Australia, The
Centre for Commercial and Resources Law, The University of Western
Australia and Murdoch University, Perth, 1994.
- See for example Frank Brennan, Michael Davis, et al,
Controlling destinies: greater opportunities for Indigenous
Australians to control their destinies, (Key issue paper no.
8), Council for Aboriginal Reconciliation, AGPS, Canberra, 1994,
pp. 42-45.
- These agreements are discussed in Benjamin J. Richardson, Donna
Craig, and Ben Boer, Regional agreements for indigenous lands
and cultures in Canada: a discussion paper, North Australia
Research Unit, The Australian National University, Darwin, 1995;
Terry Fenge, Political development and environmental management in
northern Canada: the case of the Nunavut Agreement,
Discussion paper no. 20, North Australia Research Unit,
The Australian National University, Darwin, October 1993; Benjamin
J. Richardson, Donna Craig, and Ben Boer, 'Indigenous peoples and
environmental management: a review of Canadian regional agreements
and their potential application to Australia', Part 1,
Environmental and Planning Law Journal, vol. 11, no. 4,
Aug 1994, pp. 320-343; Benjamin J. Richardson, Donna Craig, and Ben
Boer, 'Indigenous peoples and environmental management: a review of
Canadian regional agreements and their potential application to
Australia', Part 2, Environmental and Planning Law
Journal, vol. 11, no. 5, Oct 1994, pp. 357-81; Michele
Ivanitz, 'The Emperor has no clothes: Canadian comprehensive claims
and their relevance to Australia', Regional agreements paper no. 4,
Native Titles Research Unit, AIATSIS, Canberra, August 1997.
- Justice R. S. French, 'Pathways to agreement', paper presented
to Indigenous Land Use Agreements Conference, Darwin, 24-29
September 1995, p. 3.
- Patrick Sullivan, 'Regional agreements in Australia: an
overview' Issues paper no. 17, Land, rights, laws: issues of
native title, Native Titles Research Unit, AIATSIS, Canberra,
April 1997, p. 2.
- A range of agreements is mentioned in Rick Farley, Tony McRae,
and Patricia Lane, 'Outlook for regional development: opportunities
for regional agreements', paper presented to the Northern Australia
Regional Outlook Conference, Darwin, 24 September, 1997.
- The Indigenous Protected Areas Programme is outlined in Dermot
Smyth and Johanna Sutherland, Indigenous protected areas:
conservation partnerships with Indigenous landholders,
Consultants Report to Environment Australia, Commonwealth of
Australia, Canberra, November 1996.
- See David Lawrence, Managing parks/ managing 'country': joint
management of Aboriginal owned protected areas in Australia,
Research paper no. 2, 1996-97, Parliamentary Research
Service, Department of the Parliamentary Library, Canberra, 1996.
- Commonwealth of Australia, Uluru (Ayers Rock-Mount Olga)
National park plan of management, National Parks and Wildlife
Service, AGPS, Canberra, 1991; Jim Birckhead, Terry de Lacy, and
Laurajane Smith, eds, Aboriginal involvement in parks and
protected areas, Canberra, Aboriginal Studies Press, 1993;
Woenne-Green, op. cit.
- Hon. Elizabeth Evatt AC, Report of the Review of the
Aboriginal and Torres Strait Islander Heritage Protection Act
1984, Sydney, 1996.
- See AIATSIS, Our culture, our future: report on Australian
Indigenous cultural and intellectual property rights,
Canberra, 1998, Australian Copyright Council, Protecting
Indigenous intellectual property: a copyright perspective,
Sydney, March 1997, pp. 24-27.
Australian Institute of Aboriginal and Torres
Strait Islander Studies, Our culture, our future: proposals for
the recognition and protection of Indigenous cultural and
intellectual property, Canberra, 1997.
Australian Institute of Aboriginal and Torres
Strait Islander Studies, Our culture, our future: report on
Australian Indigenous cultural and intellectual property
rights, Canberra, 1998.
Axt, Josephine R., M. L. Corn, M. Lee, and D. M.
Ackerman, Biotechnology, Indigenous peoples and intellectual
property rights, Report for Congress, CRS 21, 16 April 1993,
Congressional Research Service, Washington, DC, USA.
Bartlett, Richard, 'The source, content and
proof of native title at common law', in Richard Bartlett (ed),
Resource development and Aboriginal land rights in
Australia, The Centre for Commercial and Resources Law,
University of Western Australia, Perth, 1993, pp. 35-60.
Bennett, David, 'Native title and intellectual
property', in Paul Burke (ed), 'Land, rights, laws: issues of
native' title, Issues paper no.10, Native Titles Research
Unit, Australian Institute of Aboriginal and Torres Strait Islander
Studies, Canberra, April 1996.
Birckhead, Jim, Terry de Lacy, and Laurajane
Smith, eds, Aboriginal involvement in parks and protected
areas, Canberra, Aboriginal Studies Press, 1993.
Blakeney, Michael, 'Bioprospecting and the
protection of traditional medical knowledge', paper presented to
the Symposium on Intellectual Property Protection for the Arts and
Cultural Expression of Aboriginal and Torres Strait Islander
Peoples', Brisbane, September 1996.
Blakeney, Michael, 'Bioprospecting and the
protection of traditional medical knowledge', paper presented to
the Symposium on Intellectual Property Protection for the Arts and
Cultural Expression of Aboriginal and Torres Strait Islander
Peoples', Perth, 1 October 1996.
Blakeney, Michael, 'Bioprospecting and the
protection of traditional medical knowledge', European
Intellectual Property Review, vol. 19, no. 6, June 1997, pp.
298-303.
Brennan, Frank, Michael Davis, et al,
'Controlling destinies: greater opportunities for Indigenous
Australians to control their destinies', Key issue paper no.
8, Council for Aboriginal Reconciliation, AGPS, Canberra,
1994.
Brown, A. J., Keeping the land alive:
Aboriginal people and wilderness protection in Australia, The
Wilderness Society and the Environmental Defender's Office, Sydney,
1992.
Brush, Stephen, J., 'Indigenous knowledge of
biological resources and intellectual property rights: the role of
anthropology', American Anthropologist, vol. 95, no. 3,
1993, pp. 653-671.
Commonwealth of Australia, 'Biodiversity and its
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1993.
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Commonwealth environment legislation, consultation
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Commonwealth-State Working Group on Access to
Australia's Biological Resources, Managing access to
Australia's biological resources: developing a nationally
consistent approach, October 1996.
Commonwealth of Australia, Uluru (Ayers
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Parks and Wildlife Service, AGPS, Canberra, 1991.
Craig, Donna, 'Implementing the Convention on
Biological Diversity: Indigenous peoples' issues', Contribution to
IUCN Commission on Environmental Law, Technical Paper on Legal and
Institutional Issues Arising from the Implementation of the
Convention on Biological Diversity, presented to the Regional
Conference on the Biodiversity Convention, Manila, 6-8 June,
1994.
Craig, Donna, and Peter Jull, 'Regional
agreements - options for Australian Indigenous peoples', draft
working paper prepared for the Office of the Aboriginal and Torres
Strait Islander Social Justice Commissioner, 1994, cited in Dodson,
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Davis, Michael, Indigenous peoples and
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1996-97, Information and Research Services, Department of the
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Dodson, Michael, Aboriginal and Torres Strait
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Evatt, AC, Hon. Elizabeth, 'Report of the Review
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Farley, Rick, Tony McRae, and Patricia Lane,
'Outlook for regional development: opportunities for regional
agreements', paper presented to the Northern Australia Regional
Outlook Conference, Darwin, 24 September, 1997.
Fenge, Terry, Political development and
environmental management in northern Canada: the case of the
Nunavut Agreement, Discussion paper no. 20, North
Australia Research Unit, The Australian National University,
Darwin, October 1993.
Fourmile, Henrietta, 'Protecting Indigenous
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Glowka, Lyle, Francoise Burhenne-Guilmin and
Hugh Synge, in collaboration with Jeffrey A. McNeely and Lothar
Gundling, A guide to the Convention on Biological Diversity,
Environmental policy and law paper no.30, IUCN, Gland,
Switzerland, 1994.
Harte, Michael, 'Indigenous biological diversity
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heritage as law scrapped', The Sydney Morning Herald,
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Regional agreements paper no. 4, Native Titles Research Unit,
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99-160.
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'country': joint management of Aboriginal owned protected areas in
Australia', Research paper no. 2, 1996-97, Parliamentary
Research Service, Department of the Parliamentary Library,
Canberra, 1996.
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"profits of the land": the inclusion of traditional fishing and
hunting rights in the content of native title', in Richard H.
Bartlett and Gary D. Meyers, eds, Native title legislation in
Australia, The Centre for Commercial and Resources Law, The
University of Western Australia and Murdoch University, Perth,
Western Australia, 1994, pp. 213-230.
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Australia: the implications for living resources management',
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land', UNSW Law Journal, vol. 16, no. 1, 1993, pp.
161-222.
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analysis of the way Yolngu have used sacred knowledge to retain
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Posey, Darrell A., and Graham Dutfield,
Beyond intellectual property rights: toward traditional
resource rights for indigenous peoples and local communities,
International Development Research Centre, Ottawa, Canada,
1996.
Richardson, Benjamin J., Donna Craig, and Ben
Boer, 'Indigenous peoples and environmental management: a review of
Canadian regional agreements and their potential application to
Australia', Part 1, Environmental and Planning Law
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Richardson, Benjamin J, Donna Craig, and Ben
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