5. The commercial opportunity of protecting Indigenous Cultural and Intellectual Property
   1. Intellectual Property (IP) describes ‘creations of the mind’ by an individual, including inventions, visual arts, literature, names and symbols.[1] According to IP Australia, IPrights support business growth, and are a key productivity and economic driver due to their impact on innovation and the dispersal of ideas.
   2. Australian small businesses who file for an IP right are 16 percent more likely to experience high employment growth than their peers without recent filings overs the next three years. Startups that file for IP in their first year are twice as likely to experience high employment growth over the next three years.[2]
   3. The IP and data landscape is evolving and there are opportunities and risks for advancing First Nations economic prosperity. Protection of Indigenous Cultural and Intellectual Property (ICIP) and data sovereignty can play a critical role in driving the First Nations economy and economic development for Indigenous people.
   4. Despite the potential of IP as a tool to support economic opportunities for First Nations Australians, there remains a gap between First Nations and non-Indigenous Australians in using IP for business. For example, First Nations-led firms and First Nations employees are less likely to be involved with IP. Firms with 50 per cent or more Indigenous leadership are 30–40 per cent less likely to hold IP compared to firms with non-Indigenous leadership.[3]
   5. ICIP has limited protections under Australian IP laws, including copyright and trademarks, which often allow for legal misappropriation, resulting in the loss of economic benefit and cultural harm to FirstNations peoples.[4] Western IP laws focus ‘on individual ownership and commercial exploitation that can be transferred or licensed to others and offer time limited protection’.[5]
   6. ICIP encompasses traditional knowledge and traditional cultural expressions (TCEs), that are often communally owned.[6] Traditional knowledge encompasses knowledge, skills and practices developed, sustained and passed on for generations within communities, becoming part of their cultural and spiritual identities. This knowledge incorporates know-how resulting from intellectual activities including skills and innovation across areas such as agriculture, science, ecology and medicine. It also includes TCEs such as unique signs and symbols, visual arts, performance, music, ceremonies and narratives. TCEs form part of a community’s cultural and social identity and heritage, as well as practices, values and beliefs.[7]. Genetic and other biological resources—medicinal plants, agricultural crops and animal breeds—are also linked with traditional knowledge through their use and conservation over generations.[8]

Modernising IP laws can provide commercial opportunities

5.7Emerging industries offer an opportunity for First Nations peoples to benefit economically from their commercialisation, grow their wealth, and connect with Country, but only if the cultural and traditional knowledge associated with those industries, products, and services are legally and adequately protected.

5.8For example, the native food and botanicals industry provides a wealth of opportunities for the use of First Nations knowledge. The market size of the industry is rapidly growing however less than 15 per cent of the industry identifies as First Nations. There are opportunities to grow the First Nations economy by supporting First Nations producers and businesses to protect their resources and traditional knowledge through Certification Trademarks (CTMs) and Geographical Indications (GIs).

5.9First Nations tourism opportunities have immense potential to preserve and disseminate First Nations knowledge through immersive cultural experiences and educational initiatives directly on Country. Essential to the success of First Nations ventures is robust First Nations governance and branding, safeguarded by IP and ICIP protections.

5.10The Land Back Foundation elaborated by saying that ‘Cultural Capital…provides one of the greatest value propositions for First Nations (bush foods, bush medicines, tourism, etc)’.[9] Charles Darwin University too advised that:

…the growing recognition of Indigenous knowledge systems presents unique prospects for seeding generational economic growth, particularly in sectors like environmental protection, sustainable land management, cultural tourism, resources extraction and development, and renewable energy development.[10]

Protection of traditional knowledge is novel and evolving

5.11While submitters agree that ICIP provides significant opportunities for economic self-determination, the right to protect and safeguard such knowledge and cultural systems is essential for capitalising on these commercial opportunities.

5.12Several international instruments have been agreed acknowledging the rights of Indigenous peoples to the control and protect traditional knowledge and TCEs. Article31 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms:

…the right to maintain, control, protect and develop…intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions.[11]

5.13The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol), provides for a transparent legal framework for the fair and equitable sharing of benefits resulting from the use of genetic resources.[12]

5.14DrTerri Janke, a Wuthathi, Yadhaigana, and Meriam woman and world-renowned expert on ICIP, advises that the Nagoya Protocol can empower First Nations peoples to enter into access and benefit-sharing agreements with companies who wish to use their genetic resources and traditional knowledge for inventions and commercialisation.[13]

5.15In May 2024, World Intellectual Property Organization’s (WIPO) member states, including Australia, agreed to the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge providing provisions specifically for ICIP. It recognises Indigenous peoples’ genetic resources and traditional knowledge, and establishes ‘disclosure requirements for patent applications whose inventions are based on genetic resources and/or associated [traditional knowledge]’.[14]

5.16Domestically, IP Australia is considering how the system can better accommodate and support Aboriginal and Torres Strait Islander peoples wishing to benefit from and protect their traditional knowledge. This includes changes that support the cultural integrity and economic potential of ICIP; amendments to trademark and design laws to prevent misappropriation of language and imagery; and to patent and plant breeder’s rights laws to require discloser of the use of ICIP in new applications.[15]

5.17Currently, IP Australia is working to establish stand-alone legislation recognising and protecting traditional knowledge and TCEs, as per the Government’s National Cultural Policy, Revive. The initial phase will focus on fake art, merchandise and souvenirs, with the second stage to explore ways to enshrine broader ICIP rights in Australian law.[16]

5.18Other protective initiatives undertaken by IP Australia include online resources. Advice is available for Indigenous businesses on how to engage with the IP system and protect ICIP. While non-Indigenous businesses are encouraged to improve their awareness and understanding of ICIP, and the importance of consultation and obtaining free, prior and inform consent before using ICIP.[17] It also employs traditional knowledge experts, including Aboriginal and Torres Strait Islander employees, to make and manage decisions on IP applications for trademarks, designs and patents which are identified as containing ICIP within current laws.[18]

5.19An Indigenous Knowledge Panel is also being established to advise IPAustralia on traditional knowledge issues and ways to improve the IP system, and support Aboriginal and Torres Strait Islander peoples, communities and business to protect and benefit from their ICIP.

5.20Dr Janke acknowledges the work currently being undertaken by the Australian Government and IP Australia to protect traditional knowledge and TCEs within the visual arts and crafts market from misappropriation. But advises that economic self-determination can be further supported through the broad recognition and protection of ICIP, both the tangible and intangible. This includes how ICIP can be recorded and used, and with a focus on free, prior and informed consent for how knowledge is commercialised and benefit sharing. As such, DrJanke advises the Australian Government to consider opportunities for broader domestic ICIP legislation and regulations, along with the ratification of the Nagoya protocol and recent WIPO Treaty.[19]

5.21The Arts Law Centre of Australia (Arts Law) agrees that amending Australia’s current IP system and protections ‘are key to unlocking capital and leveraging [ICIP]’.[20] The Australian Indigenous Governance Institute also notes that ‘First Nations voices should drive governmental initiatives on unlocking economic capital and leveraging [IP]’.[21]

5.22The Federation of Victorian Traditional Owner Corporations (FVTOC) concurs that:

…legislative protection of ICIP for Traditional Owners would, in the same way that mainstream intellectual property protection drives innovation, invention, creative expression and creative input, essentially provide...an economic base for them to be able to launch from.

5.23Australian Native Title and Reconciliation (ANTAR) also recommends enshrining of UNDRIP principles, including free, prior and informed consent, through national legislation.[22]

5.24IBA suggests promoting and utilising other business supports in addition to legislative reforms. IBA advised the Committee it is working to roll out the Law Way workshop by Terri Janke and Company (TJC) to its customers. Additionally, through its business support program, IBA facilitates a workshop series in which businesses discuss how and what information is shared, including cultural knowledge and stories. As part of this, IBA also connects businesses with Indigenous-owned law firms, such as TJC, Marrawah Law and Parallax Legal, to learn how they can protect their ICIP.[23] Ms Stella de Cos, IBA Director of Community and Customer Experience, told the Committee, ‘[we] make sure they understand that that's their asset. It's not for anybody else to monetise or capitalise off’.[24]

5.25Legislative and regulatory reforms, and other business supports, that improve ICIP protections can provide increased opportunities for economic self-determination and growth, but also increase economic opportunities across various industries, as discussed below.

Bush foods and botanicals

5.26The bush foods and botanicals products industry provide significant opportunities for self-determination. The native foods and medicines industry within Australia offers an opportunity for First Nations people to not only connect with their foods systems, but also benefit economically from their commercialisation. A 2020 industry report estimated that the native foods industry held a market retail value of $80million with projections indicating that the value would double by the year 2025.

5.27A joint submission co-led by Dr Alana Gall, a Truwulway woman, and DrLukeWilliams, a Gumbaynggirr man, also commented on the potential of the bushfoods and medicines industry.[25]

5.28While the market size of the industry is rapidly growing, less than 15per cent of the industry identifies as First Nations. There are opportunities for the First Nations economy by supporting First Nations producers and businesses to protect their resources and traditional knowledge through Certification Trademarks (CTMs) and Geographical Indicators (GIs).

5.29Stakeholders drew the Committee’s attention to the trend towards and consumer market for native foods and botanicals, while advising their concerns. Concerns raised include a reluctance to introduce products to domestic and international markets because of fear that the product and traditional knowledge is not legally protected and that they cannot compete with larger scale operators who may misappropriate their product, international market barriers, benefit sharing, and business and industry support.

5.30Mr Robert Taylor, a Nhanda man from the mid-west Murchison area, as Chief Executive Officer of the West Australian Indigenous Tourism Operators Council (WAITOC) and board member for Outback Academy Australia, advised that support for protecting ICIP, including GIs, is needed:[26]

If you’ve got a bush food product from the south-west, its origin or its DNA should be part of that protection as well.[27]

5.31Mr Taylor also raised concerns regarding non-Indigenous businesses trading on use of words linked Indigenous cultures for their foods and botanical products:

With the naming of Aboriginal places as well, that becomes a bit of a challenge …because we see many non-Indigenous businesses starting to name their businesses after those places, but the challenge isn’t the fact that they’ve used a place name; it’s the fact that they add the word ‘dreaming’ after it. There’s a company that’s doing bush teas in, I think, South Australia that calls their company Lemon Myrtle Dreaming as a tea. We’re like, ‘Well, why have you called it that? What's the dreaming context?’…it’s very important that we get that intellectual property protected. There have already been many seeds stolen out of Australia already, so we don’t want to continue that. We want to try and protect that.

5.32Submitters have argued that the Government should prioritise ICIP in international trade agreements. For example, Indigenous producers of bush products are increasingly entering international markets and global interest in Indigenous genetic resources and knowledge is growing. Safeguarding ICIP is pivotal for trade considerations such as this, presenting a unique chance to acknowledge and protect Indigenous knowledge and bolster Australia’s recognition as a champion of Indigenous self-determination on the global stage.

5.33International market barriers were raised by Department or Agriculture, Forestry and Fisheries (DAFF). The department submitted that the European Union and United Kingdom (UK) markets are examples of access restrictions. DAFF advised that the UK’s Food Standards Agency is presently assessing Australian wattle-seed, mountain pepper, pepper berry and lemon myrtle for market access. However, DAFF notes that even once market access is achieved there is no universally recognised credential for authentic products marketed by First Nations businesses.[28]

5.34Supply Nation agreed that bush food and botanicals exporters are facing significant challenges:

There are significant challenges for anyone operating in the agriculture space to make sure that their botanicals and their products talents are recognised. That could be one factor that hinders their ability to either export multiple products or export to multiple markets. For example, in trying to get through, say, a botanical gin product, you need to make sure that you have the right labelling and that the [Food and Drug Administration], for example, in America recognises those products. That is a serious issue.[29]

5.35The Kimberley Land Council advised a lack of industry development support, particularly ‘technical and scientific research support that aligns with Traditional Owner values, skillsets and assets’:[30]

This understanding of Traditional Owner assets and values should then inform research and industry development across the region. With the support for new Aboriginal-led industries to take off, associated training, employment and business development opportunities will flow that capitalise on the Kimberley’s unique cultural profile.[31]

5.36Nonetheless, there are opportunities to further build a sustainable bush products industry, alleviate these concerns and increase First Nations representation.

5.37Doctors Gall and Williams advocated for a national peak body which can address the industry’s overarching issues, such as working with government agencies. The First Nations Bushfood and Botanical Alliance Australia could have become such a body, but without the dedicated funding and support needed, they are now seemingly defunct. The Bushtukka and Botanicals Indigenous Enterprise Cooperative, a new body made up of First Nations primary producers and wild harvesters, has the potential to become a national peak representative body. However, they also require funding to sustain their presence in this ever growing and competitive industry that is dominated by non-Indigenous businesses.[32]

5.38Doctors Gall and Williams also advocated for the establishment of a centralised genetic resource database:

To further strengthen intellectual property claims and begin to document a history of use, funding is needed to help support the development of a centralised database that can host information about genetic resources. This would act as a digital repository for data and knowledges associated with the genetic resources that can be found across the continent. Having such a repository would allow communities to substantiate their claims of traditional use while also acting as a hub for traditional knowledge, which would facilitate the creation of access and benefit sharing agreements and stop the approval of erroneous patents. Furthermore, if intellectual property laws extend to cover traditional knowledges, then having a documented history of use, including traditional and cultural knowledges, would strengthen future claims. The repository would also ensure that knowledge is retained through time, ensuring that knowledge is not lost or forgotten.[33]

5.39They noted that the Bushtukka and Botanicals Indigenous Enterprise Cooperative had commenced ‘work on what could be considered the first phase of this larger database’ which could be supported through additional funding.[34]

5.40TJC suggest supporting Aboriginal and Torres Strait Islander businesses and producers to protect their resources and ICIP through CTMs and GIs.[35] Domestic examples include Bundaberg rum, Australian wine regions, and King Island and Bega cheeses.[44]

5.41Indeed, Mr Taylor advised the Committee that Outback Academy is working with the CSIRO and Dr Janke on ICIP and GIs protections.[36]

5.42To further assist Aboriginal and Torres Strait Islander exporters, the Department of Foreign Affairs and Trade (DFAT) is seeking expressions of interest for a representative from the Indigenous bush foods sector for its inaugural cooperation project with WIPO to co-design a training and mentoring program for First Nations exporters. It is hoped this project will provide a better understanding of the gaps, challenges and opportunities for exporters, as well as the ability to protect and manage their ICIP internationally.[37]

5.43DAFF told the Committee it has provided a traceability projects grant to the Indigenous Land and Sea Corporation (ILSC), who in partnership with the National Farmers’ Federation (NFF) and PwC’s Indigenous Consulting, is exploring the development of an Indigenous agricultural product framework. This grant is restricted to agricultural products only, but these include bush foods, botanicals and other typical agricultural commodities. While DAFF emphasised, this project is still in the exploratory stage, advised consultation will be held with predominantly First Nations producers, but that non-Indigenous producers have shown interest as well. The ultimate hope of this project is that, within the framework, a credential will be developed for use by Indigenous producers that provides assurance the products being purchased are Indigenous products with ‘certain characteristics and parameters’.[38]

5.44The Northern Territory Indigenous Business Network is supportive of certification initiatives, advising that:

It is vital that we continue to support traceability and provenance initiatives for Indigenous food and plant-based products, as there is a high demand for these products and the level of skill and cultural knowledge undertaken to produce these products is being undermined in international spaces where Indigenous voices need to be privileged.[39]

5.45While these projects are significant, Jumbunna for Indigenous Education and Research (Jumbunna) advised that a definition for bush foods and the sector’s parameters are undefined, creating difficulties. For example, Jumbunna noted that macadamias, while ‘being endemic to Australia and an Indigenous food source’ are not considered to be a bush food.[40]

5.46Mr Reece O’Brien, from FVTOC, advised another avenue for protection is through a market mechanism such as that proposed in its 2021 Victorian Traditional Owner Native Foods and Botanical Strategy. FVTOC’s strategy, based on four principles—Culture, Country, Community, Commercial—outlines legislative and regulatory reforms, and industry standards, as well as targeting at how consumers choose and purchase products:[41]

…protecting the integrity and sustainability of the sector by creating mechanisms such as certification and traceability—so that consumers can trust they are buying native foods and botanicals that have cultural provenance.[42]

5.47Indeed, FVTOC is soon to launch a campaign focused on ethical consumerism of native foods, that encourages consumers to ‘think about where their products come from, where they’re sourced and whether they’ve been produced by Traditional Owners.[43]

5.48Despite the need for further action in consideration of these continuing challenges, there are First Nations bush products enterprises that are thriving, including Seven Seasons Spirits (Box 5.1), Bush Medijina (Box 5.2) and Blak Cede (Box 5.3).

Visual arts and fashion

5.49The arts industry generates significant economic opportunities for First Nations peoples.[47]

5.50Through the creation of arts, crafts, homewares, designs and fashion, Aboriginal and Torres Strait Islander peoples and communities share and express their knowledge and culture, and create economic opportunities.[48] The Productivity Commission found that the sale of arts and crafts totalled approximately $250million in 2019–20—unfortunately this also included the sale of inauthentic arts and crafts through the misappropriation of ICIP. The Productivity Commission advised the Australian Government to introduce legislation protecting ICIP, mandatory disclosure requirements for Indigenous-style products, and strengthening the Indigenous Art Code’s (IartC) ability to monitor and administer its arts industry code of conduct (the Code).[49]

5.51The Code is a voluntary code of conduct for artists, designers, dealers, retailers, and supporters. Signatories to the Code are required to ‘ensure they are using fair, ethical and transparent practices when engaging with Aboriginal and Torres Strait Islander artists’.[50] IartC agrees that the introduction of ICIP protections into Australia law is essential, and acknowledges the work currently being undertaken by Creative Australia, IP Australia and the Attorney-General’s. However, IartC stresses that development of such legal instruments must ensure that artists have the right to protect and economically benefit from their ICIP in self-determined ways.[51]

5.52Arts Law submits that protections and legal mechanisms, such as those discussed above, ‘for self-determined exploitation of creative expressions [will] allow Aboriginal and Torres Strait Islander artists and communities to generate funds for further investment into businesses and sustainable economic businesses’.[52] As such, it recommends three reforms:

1. amending Australian Consumer Law to tackle the fake art market
2. developing a stronger regulatory market framework
3. introducing stand-alone legal protections for ICIP.[53]
   53. Dr Janke agrees that with a rising demand for First Nations arts, designs and fashion, but that:

…copyright, intellectual property, licensing arrangements and Indigenous Cultural and Intellectual Property Protocols will all be needed to assist this industry grow.[54]

5.54Dr Janke reiterated that current copyright laws are unfit to protect ICIP. The application of copyright is limited to knowledge that is written down or recorded, lasting for 70 years after a creator’s death. Meaning that only expressions of intangible knowledge is protected, not the knowledge itself. Additionally, communal and collective rights are not protected. As such a balance must be struct between protecting individual and communal rights, and how knowledge is protected and nurtured over time. Dr Janke advised the Committee that her development of the True Tracks principles and protocols for Creative Australia, which recognise the nuances of ICIP and customary law practices, could be recognised within Australia’s legal framework.[55]

5.55Dr Janke additionally advised that artificial intelligence (AI) is also exacerbating copyright issues. There are dual aspects to this. The first aspect is the ease with which AI can access and emulate content at the request of users.[56] While the second aspect highlight by Dr Janke is:

…the cultural mismatch, the mixing up and the falsehoods that can arise when AI is creating things.[57]

5.56The insidiousness of this is that Indigenous creators and ICIP holders do not know how their works and knowledge are being used. Augmenting this cultural harm is economic harm due to a lack of recognition and fair compensation.[58]

5.57The Aboriginal Art Association of Australia (AAAA) advised the Committee that it is supportive of the Productivity Commission’s recommendations for legislative protection of ICIP, but also offered other opportunities to support the industry. AAAA recommends a comprehensive evaluation of government industry funding, identifying barriers to investment, investing in initiatives that support sector expansion, skills development and employment opportunities.[59]

5.58IartC acknowledges the significant investment the Government has made in Aboriginal and Torres Strait Islander community-owned art centres. But notes that independent artists working outside the art centre model often miss out on access to culturally appropriate skill development and support, and industry participation opportunities.[60]

5.59IartC also advises that for Indigenous artists to achieve self-determination and participate freely within the arts industry, artists, whether working independently or through an arts centre, must be able to access readily available and transparent information on their rights, seek independent advice, and act with their own agency without fear of reprimand or coercion.[61]

5.60Australian Government initiatives include Austrade using its Australia’s Nation Brand to foster the Government’s trade diversification agenda, which includes growing markets for creative and cultural exports. It is also collaborating with the industry to reach the Government’s THRIVE 2030 visitor economy growth targets by supporting cultural and artistic events, as well as ‘incorporating cultural assets into destination marketing and campaigns’. Austrade confirmed to the Committee that it is aware that most merchandise and souvenirs are inauthentic, having been made without permission or licensing from Aboriginal and Torres Strait Islander artists, designers and communities. Austrade made it clear that it recognises these products provide no economic benefit to Indigenous peoples and communities, and commits the Australian Government and industry to ensuring ‘targeted offerings and marketing to visitors include disclosure about the impact of purchasing inauthentic merchandise’.[62]

5.61As discussed above, IP Australia is currently working to establish stand-alone legislation to protect ICIP, with a focus on fake art, merchandise and souvenirs. Part of this work is to ensure Aboriginal and Torres Strait Islander peoples and communities can exercise greater control over the commercialisation of, and economic benefit from, their traditional knowledge and TCEs.[63]

5.62While work continues by industry stakeholders and Australian Government agencies to improve ICIP protections for First Nations creators, happily there are non-Indigenous businesses providing examples of good practice in this space. Dr Janke and IP Australia pointed to two examples of non-Indigenous businesses—THE ICONIC and Alperstein Designs—entering into benefit-sharing agreements with Aboriginal and Torres Strait Islander artists and designers.

Tourism

5.63The tourism industry is a significant part of both the Australian and First Nations economy, for both domestic and international visitors. Austrade stated in their submission that in June 2023 there were ‘355,570 tourism-related businesses in Australia’[67] and approximately one in seven Australian businesses connected to tourism. Austrade highlighted the opportunities this presented to First Nations people in both employment and business ownership, adding:

Around 95 [per cent] of these were small and micro businesses with fewer than 20employees, with approximately 49 [per cent] having no employees other than the owner. Tourism labour statistics from the [Australian Bureau of Statistics] indicate that in the December quarter 2023, there were 655,400 filled jobs in the visitor economy, representing around [one] in 24 of filled jobs in the economy.[68]

5.64First Nations culture in particular contributes substantially to Australia’s international tourism industry, with one in seven international trips to Australia in 2023 incorporating First Nations activities.[69] Austrade commented that ‘tourism also provides an opportunity to showcase Australia’s unique visitor experiences and celebrate the world’s oldest living continuous culture’ and provided some statistics on the number of international and domestic visitors that ‘were actively seeking more First Nations experiences when they travel to and within Australia’:[70]

…these trips generated a total of $5.9 billion in international visitor spend when all expenditure across the trip was considered. The total number of international trips incorporating First Nations activities has increased by more than 1.4 times over the 10 years from 2013 to 2023.

In 2023, there were a total of 1.7 million domestic trips that incorporated First Nations activities. …These trips generated a total of $3.1 billion in domestic visitor spend. The total number of domestic trips incorporating First Nations activities has more than doubled over the 10 years between 2013 to 2023.[71]

5.65The Chair of the Noongar Chamber of Commerce and Industry (NCCI), MrGordonCole, told the Committee that the uniqueness of First Nations culture makes tourism the ideal focus of the Indigenous business sector:[72]

5.66This contribution has been increasing, and Mr Taylor of WAITOC submitted that the Indigenous tourism industry has had ‘remarkable’ market growth both internationally and domestically[73].The Business Council for Sustainable Development (BCSD) Australia submitted that the growth and success of the Indigenous tourism industry presents an opportunity for both economic and political empowerment. Referencing a paper by Richard Butler on Indigenous tourism and economics, BCSD Australia added that:[74]

Indigenous tourism is increasingly seen not just as a source of employment but to control a broader range of development opportunities and strengthen regional and national identities. This shift reflects Indigenous peoples’ active participation in tourism, moving beyond traditional roles to leverage tourism for broader economic and political objectives.[75]

5.67In addition to the potential economic and political benefits, TJC suggested that Indigenous tourism also preserved and shared First Nations Knowledge and allowed economic and employment opportunities to take place on Country.[76]

5.68First Nations tourism opportunities have immense potential to preserve and disseminate First Nations knowledge through immersive cultural experiences and educational initiatives directly on Country. Essential to the success of First Nations ventures is robust First Nations governance and branding, safeguarded by IP and ICIP protections.

5.69Austrade highlighted its existing engagements with state and territory tourism agencies with a range of marketing activities which included regional training workshops for tourism organisations in every state and territory, and webinars for tourism businesses.[78] Austrade also developed a Toolkit to help businesses to build their capacity for sustainability which included guidance on respectful engagement with First Nations culture and peoples, and on the principle of free, prior and informed consent.[79]

5.70Austrade added that they provide the National Indigenous Australians Agency (NIAA) with ongoing support through the implementation of three programs under the Indigenous Tourism Fund. This incorporates grants, mentoring and co-investment alongside states and territories for strategic projects. Austrade noted that this support contributes to Austrade’s THRIVE2030, the national strategy for the long-term sustainable growth of the visitor economy.[80] THRIVE 2030 ‘recognises that Australia’s First Nations peoples have the world’s oldest unique and continuous culture, and this culture is a key factor in attracting international visitors and encouraging Australians to travel domestically’.[81] Over 25 per cent of international travellers to Australia are interested in Indigenous guided tours, 20 per cent in Indigenous Storytelling and over 30 per cent in visiting Indigenous sites or communities.[82] Both internationally and domestically, there has been strong growth over the last ten years in the number of visitor trips incorporating First Nations activities.[83]

5.71THRIVE 2030 proposes to ‘respectively embed First Nations cultures into Australia’s brand positioning’.[84] It proposes the establishment of a First Nations Visitor Economy Partnership to support ‘greater participation of First Nations cultures, interpretation, and businesses into the visitor economy’.[85]

5.72The Commonwealth Government recently announced that it would provide greater support for First Nations Tourism through a First Nations Visitor Economy Partnership. The partnership:

• comprised of First Nations tourism industry representatives from every state and territory, will provide leadership and guidance on respectfully embedding Australia’s rich cultural heritage in our tourism offerings
• will investigate and establish a permanent First Nations national tourism peak body.[86]
  73. Additional programs aimed at increasing economic opportunities for First Nations people in the tourism sector include:
• the Indigenous Tourism Fund which supports First Nations people in the travel and tourism industry through grants, mentoring and co-investment in strategic projects
• the First Nations Tourism Mentoring Program which is designed to connect businesses with skilled, experienced and culturally respectful tourism industry specialists who are providing one-on-one guidance, advice and support.[87]

Committee comment

Intellectual property has the potential to be an enabler and barrier to economic development

5.74The Committee recognises Aboriginal and Torres Strait Islander peoples’ right to their cultural and intellectual property, individually and collectively, including traditional knowledge, cultural expressions and genetic resources.

5.75IP rights are a key driver of productivity and support Australian businesses and the economy through their effect on innovation and the diffusion of ideas. The use of IP in businesses is correlated with increased business growth. The Committee acknowledges that IP has the potential to be both an enabler and a barrier to economic self-determination of First Nations peoples.

5.76The IP and data landscape is evolving and there are opportunities and risks for advancing First Nations economic prosperity. Protection of ICIP and data sovereignty can play a critical role in driving the First Nations economy and economic development for Indigenous peoples.

5.77However, Western and Australia’s IP laws are not fit-for-purpose for recognising and protecting ICIP, and Australia’s implementation of access and benefit sharing laws is piecemeal and fragmented. This creates significant gaps where the misuse and misappropriation of Indigenous knowledge can occur, resulting in the loss of economic benefits and cultural harm to First Peoples.

5.78The Committee acknowledges the work currently being undertaken by IP Australia, Office of the Arts, NIAA and the Attorney-General’s Department to protect traditional knowledge and TCEs within the visual arts and crafts market from misappropriation. The Committee also notes that the second stage of this work will explore ways to enshrine ICIP rights more broadly in Australian law. By investigating robust protection frameworks, we can ensure that the rights of First Nations people over their cultural heritage are respected and upheld.

5.79The Committee also notes the work being undertaken by the ILSC in partnership with the NFF through DAFF’s traceability projects grants, in exploring the development of an Indigenous agricultural product framework and certification. Of additional interest to the Committee is the work being undertaken by DFAT in cooperation with WIPO to co-design a training and mentoring program for First Nations exporters.

5.80Authentic First Nations products could offer market advantage or premium if they are appropriately marketed and protected, but a lack of IP protection for cultural knowledge, and authentication/certification/trademark is a barrier.

5.81The modernisation of IP legislation and additional regulatory measures are needed to capitalise on commercial opportunities for ICIP, and to prevent exploitation and unauthorised use of ICIP.

5.82Regulatory options aimed at preventing misappropriation of ICIP in all current and emerging sectors is essential. Establishing clear guidelines and legal repercussions for misappropriation will help maintain the authenticity and respect for First Nations knowledge and cultures.

5.83The Committee recommends the Australian Government ratify the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization and the World Intellectual Property Organization’s Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.

5.84The Committee recommends that the Australian Government task IPAustralia, Department of Agriculture, Fisheries and Forestry, and Department of Foreign Affairs and Trade to investigate legislative and regulatory options to strengthen the protection, certification, promotion, and marketing of FirstNations products and services domestically and internationally.

5.85The Committee recommends the Australian Government task IPAustralia as part of its current works to protect Indigenous Cultural and Intellectual Property, to investigate legislative options to strengthen legal protections for collective knowledge and historical rights and opportunities.

Establishing an Indigenous knowledge database

5.86The data landscape is evolving and there are risks and opportunities for First Nations data sovereignty and cultural knowledge.

5.87The bush food industry has advocated for establishing a centralised database or national registration system to substantiate Indigenous knowledge. This will enable documenting a history of use that can host information about genetic resources. This would act as a digital repository for data and knowledges associated with the genetic resources that can be found in Australia.

5.88Having such a repository would allow communities to substantiate their claims of traditional use while also acting as a hub for traditional knowledge, which would facilitate the creation of access and benefit sharing agreements.

5.89Furthermore, if IP laws extend to cover traditional knowledges, then having a documented history of use, including traditional and cultural knowledges, would strengthen future claims. The repository would also ensure that knowledge is retained through time, ensuring that knowledge is not lost or forgotten.

5.90The Committee recommends establishing and funding a centralised database or national registration system to substantiate Indigenous knowledge and facilitate the creation of access and benefit sharing agreements. Such a database would enable a digital repository for data and knowledge associated with genetic resources found in Australia.

Growing the bush foods and botanicals industry

5.91The bush foods and botanicals industry offer opportunities for Indigenous peoples to not only connect with their foods and medicinal systems, but also benefit economically from their commercialisation. A 2020 industry report estimated that the native foods industry held a market retail value of $80 million, with projections indicating that the value would double by the year 2025.

5.92While the industry is heavily reliant on bush foods and botanicals that have a long history of use within First Nations communities, a 2022 report stated that Indigenous-owned and operated businesses were generating only one per cent of the industry’s produce and dollar value. Aboriginal and Torres Strait Island-led enterprises were also said to be grossly underrepresented in the supply chain, comprising less than oneper cent of producers across the supply chain.

5.93Growing interest in the bush foods and botanicals industry is not only coming from domestic markets, but international consumers are also increasingly seeking out products that come from First Nations producers and suppliers.

5.94Considering that the vast majority of bush foods and botanicals grow in rural and remote settings, there is a real opportunity for a successful First Nations-led industry to create economic opportunities for those located in regional and remote areas of Australia. Importantly, this presents an opportunity for First Nations peoples to build their economic independence while staying on Country and maintaining their cultures and caring for Country.

5.95The Committee acknowledges the fragmentation of the bush food and fibre industry, and the benefits of a sustainable peak industry group for emerging industries that can act as a single voice, and trusted body to help advance the core interests of the industry.

5.96The Committee recommends the Australian Government work with the bush foods and fibre industry to establish a sustainable peak industry body.

Footnotes

[1]World Intellectual Property Organization (WIPO) n.d., ‘What is Intellectual Property?’, https://www.wipo.int/about-ip/en/, accessed 23 September 2024.

[2]IP Australia, Submission 47, p. 3.

[3]IP Australia, Submission 47, p. 3.

[4]Productivity Commission 2022, Aboriginal and Torres Strait Islander visual arts and crafts: Study report, https://www.pc.gov.au/inquiries/completed/indigenous-arts/report, accessed 26 September 2024, p. 144; IPAustralia, Submission 47, pages 3–4, House Standing Committee on Indigenous Affairs 2018, Report on the impact of inauthentic art and craft in the style of First Nations peoples, pages 51–58; Arts Law Centre of Australia (Arts Law), Submission 29, pages [2–3]; Australian Indigenous Governance Institute (AIGI), Submission19, p. 6.

[5]Mr Matthew Forno, Acting General Manager, Policy and Stakeholder Group, IP Australia, Committee Hansard, 28 June 2024, p. 11.

[6]Terri Janke and Company (TJC), Submission 60, p. 3.

[7]WIPO n.d., ‘Traditional Knowledge’, https://www.wipo.int/tk/en/tk/, accessed 23 September 2024; WIPO n.d., ‘Traditional Cultural Expressions’, https://www.wipo.int/tk/en/folklore/, accessed 23 September 2024.

[8]WIPO n.d. ‘Genetic Resources’, https://www.wipo.int/tk/en/genetic/, accessed 23 September 2024; WIPO2024, ‘WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge’, Press release, 24 May, https://www.wipo.int/pressroom/en/articles/2024/article_0007.html, accessed 23 September 2024.

[9]Land Back Foundation, Submission 11, pages. [2]–[3].

[10]Charles Darwin University, Submission 54, p. 9.

[11]United Nations (UN) 2007, United Nations Declaration on the Rights of Indigenous Peoples, https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf, accessed 26 September 2024, pages 22–23.

[12]United Nations Environment Programme n.d., ‘About the Nagoya Protocol’, Convention on Biological Diversity, https://www.cbd.int/abs/about/default.shtml, accessed 27 September 2024.

[13]Dr Terri Janke, Committee Hansard, 23 July 2024, pages 1–2.

[14]WIPO 2024, ‘WIP Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge’, Press release, 24May, https://www.wipo.int/pressroom/en/articles/2024/article_0007.html, accessed 26 September 2024.

[15]IP Australia, Submission 47, pages 4–5.

[16]IP Australia, Submission 47, pages 4– 5; Australian Government 2023, Australia’s Cultural Policy for the next five years: Revive – A place for every story, a story for every place, pages 9, 31–33, 97–98; Mr Forno, IPAustralia, Committee Hansard, 28 June 2024, pages 11–12; Ms Edwina Lewis, Director, Policy and International Affairs, IP Australia, Committee Hansard, 28 June 2024, p. 13.

[17]IP Australia, Submission 47, pages 4–5.

[18]IP Australia, Submission 47, pages 4– 5.

[19]Dr Janke, Committee Hansard, 23 July 2024, pages 2–3; TJC, Submission 60, p.3.

[20]Arts Law, Submission 29, p. [3].

[21]AIGI, Submission 19, p. 3.

[22]Australian Native Title and Reconciliation, Submission 92, p. 4.

[23]Ms Kia Dowell, Executive Director, Strategy and Impact, Indigenous Business Australia (IBA), Committee Hansard, 28 June 2024, p. 56; Ms Stella de Cos, Director, Community and Customer Experience, IBA, Committee Hansard, 28 June 2024, p. 57.

[24]Ms de Cos, IBA, Committee Hansard, 28 June 2024, p. 57.

[25]Dr Alana Gall and Dr Luke Williams, Submission 13, p. 3.

[26]Mr Robert Taylor, Chief Executive Officer, West Australian Indigenous Tourism Operators Council (WAITOC), Committee Hansard, 2 September 2024, pages 9 and 14.

[27]Mr Taylor, WAITOC, Committee Hansard, p. 14.

[28]Department of Agriculture, Forestry and Fisheries (DAFF), Submission 9, p. 4.

[29]Ms Kate Russell, Chief Executive Officer, Supply Nation, 24 September 2024, p. 2.

[30]Kimberley Land Council (KLC), Submission 83, p. 8.

[31]KLC, Submission 83, p. 8.

[32]Dr Alana Gall and Dr Luke Williams, Submission 13, pages 46–7.

[33]Dr Alana Gall and Dr Luke Williams, Submission 13, pages 6–7.

[34]Dr Alana Gall and Dr Luke Williams, Submission 13, p. 7.

[35]TJC, Submission 60, p. 4.

[44]Business Queensland 2024, ‘What are geographical indications’, https://www.business.qld.gov.au/running-business/risk/ip/ip-kit/browse-ip-topics/place-names-identifying-the-origin-of-a-product-geographical-indications/definition, accessed 14 October 2024.

[36]Mr Taylor, WAITOC, Committee Hansard, 2 September 2024, p. 14.

[37]Ms Skye Reeve, Acting Assistant Secretary, Services, Competition and Intellectual Property Branch, Office of Global Trade Negotiations, Department of Foreign Affairs and Trade, Committee Hansard, 24September2024, p. 35.

[38]Ms Sarah Burr, Assistant Secretary, First Nations Branch, DAFF, Committee Hansard, 28 June 2024, p. 44.

[39]Northern Territory Indigenous Business Network, Submission 63, p. 9.

[40]Jumbunna Institute for Indigenous Education and Research, Submission 25, p. 16.

[41]Mr Reece O’Brien, Principal Adviser, Economic Development, Federation of Victorian Traditional Owner Corporations (FVTOC), Committee Hansard, 19 July 2024, p. 24; FVTOC 2021, Victorian Traditional Owner Native Food and Botanicals Strategy, https://fvtoc.com.au/sections/native-foods-botanicals-strategy/, accessed 15October2024, pages 21–23 and 29.

[42]FVTOC 2021, Victorian Traditional Owner Native Food and Botanicals Strategy, https://fvtoc.com.au/sections/native-foods-botanicals-strategy/, accessed 15October2024, p. 29.

[43]Mr O’Brien, FVTOC, Committee Hansard, 19 July 2024, p. 24.

[44]Allen, M 2023, ‘Indigenous-run drinks brand scales up – yet stays true to its roots’, Australian Financial Review, 28 June, https://www.afr.com/life-and-luxury/food-and-wine/indigenous-run-drinks-brand-scales-up-yet-stays-true-to-its-roots-20230620-p5di3n, accessed 8 October 2024; Seven Seasons Spirits n.d., ‘About Us’, https://www.seven-seasons.com.au/our-story/, accessed 8 October 2024; NAIDOC n.d., ‘Daniel Motlop: National NAIDOC Innovation Award Category’, https://www.naidoc.org.au/award-finalist/daniel-motlop, accessed 8 October 2024;Allen, M 2017, ‘Australian gin brands: more than 100 and rising fast’, Financial Review, 27 June, https://www.afr.com/life-and-luxury/indigenous-gin-leads-craft-spirit-boom-in-australia-20170511-gw2bec, accessed 8 October 2024.

[45]TJC, Submission 60, p. 4; IBA, Submission 14, Joint Standing Committee on Northern Australia 2022, Inquiry into the opportunities and challenges of the engagement of traditional owners in the economic development of Northern Australia, p. 18; The Fair Trader n.d., ‘Bush Medijina: About the Makers’, https://thefairtraderstore.com.au/pages/bush-medijina-about-the-makers, accessed 21 October 2024; Telstra n.d., ‘Bush Medijina’, https://www.telstra.com.au/small-business/best-of-business-awards/about/our-legacy/bush-medijina, accessed 21 October, 2024; Indigenous Business Month 2024, ‘Indigenous Business Month Awards’, https://www.indigenousbusinessmonth.com.au/indigenous-business-month-awards, accessed 21 October 2024; Awards Australia n.d., ‘Northern Territory Community Achievement Awards’, https://awardsaustralia.com/community-achievement-awards/nt/previous-winners/, accessed 21October2024.

[46]Waminda South Coast Women’s Health and Wellbeing Aboriginal Corporation, Submission 23, pages 4–6.

[47]TJC, Submission 60, p. 6.

[48]TJC, Submission 60, p. 6.

[49]Productivity Commission 2022, Aboriginal and Torres strait Islander visual arts and crafts: Study report overview, https://www.pc.gov.au/inquiries/completed/indigenous-arts/report, accessed 18 September 2024, pages2 and 29.

[50]Indigenous Art Code (IartC), Submission 85, p. 1.

[51]IartC, Submission 85, p. 5.

[52]Arts Law, Submission 29, p. [2].

[53]Arts Law Centre of Australia, Submission 29, p. 3.

[54]TJC, Submission 60, p. 6.

[55]TJC, Submission 60, pages 3–4.

[56]Dr Janke, Committee Hansard, 23 July 2023, p. 6.

[57]Dr Janke, Committee Hansard, 23 July 2023, p. 6.

[58]Dr Janke, Committee Hansard, 23 July 2023, p. 6.

[59]Aboriginal Art Association of Australia, Submission 61, p. 2.

[60]IartC, Submission 85, p. 2.

[61]IartC, Submission 85, p. 2.

[62]Austrade, Submission 81, pages 9–10.

[63]IP Australia, Submission 47, pages 4–5.

[64]THE ICONIC 2024, ‘THE ICONIC FNFD Incubator Program’, https://www.theiconic.com.au/first-nation-fashion-design-incubator-program/, accessed 21 October 2024.

[65]TJC, Submission 60, p. 6.

[66]IP Australia, Supplementary Submission 47.1, pages 1–2.

[67]Austrade, Submission 81, p. 3.

[68]Austrade, Submission 81, p. 3.

[69]Austrade, Submission 81, pages 4–5.

[70]Austrade, Submission 81, pages 4–5.

[71]Austrade, Submission 81, pages 4–5.

[72]Mr Gordon Cole, Chair, Noongar Chamber of Commerce and Industry (NCCI), Committee Hansard, 2September 2024, p.8.

[73]Mr Taylor, WAITOC, Committee Hansard, 2September 2024, p. 10.

[74]Business Council for Sustainable Development (BCSD) Australia, Submission 71, p. 10.

[75]BCSD Australia, Submission 71, p. 10.

[76]TJC, Submission 60, p. 7.

[77]TJC, Submission 60, p. 7; Voyages 2023, ‘Tourism awards for Wintjiri Wiru Honour Anangu culture’, https://www.voyages.com.au/presscentre/tourism-awards-for-wintjiri-wiru-honour-anangu-culture, accessed 21 October 2024; Voyages n.d., ‘Contributors. Wintjiri Wiru Working Group’, https://www.ayersrockresort.com.au/wintjiri-wiru/contributors, accessed 21 October 2024.

[78]Austrade, Submission 81, pages 5–6.

[79]Austrade, Submission 81, p. 6.

[80]Austrade, Submission 81, pages 2 and 6.

[81]Austrade, Submission 81, p. 2.

[82]Austrade, Submission 81, p. 5.

[83]Austrade, Submission 81, p. 4.

[84]Austrade, Submission 81, p. 2.

[85]Austrade, Submission 81, p. 5.

[86]Minister for Trade and Tourism, Senator the Hon Don Farrell 2024, ‘New partnership a boost for First Nations tourism’, Media release, 30 October.

[87]Minister for Trade and Tourism, Senator the Hon Don Farrell 2024, ‘New partnership a boost for First Nations tourism’, 30 October.