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Native Title Report 2008 - Chapter 7

Native Title Report 2008

Chapter 7
The
Protection of Indigenous
knowledge’s

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1 Overview

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 agriculture 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.[1]

It comes as no surprise that all societies argue for policies and practices
that help sustain their cultures and systems of knowledge. This is because
culture is fundamental to identity – it is our past, our present and our
future. We need our culture to sustain us and to keep us well. But importantly,
we need culture because it provides the fundamental essence of who we are, how
we practice our Lore, how we interact with each other, and how we meet our
familial and collective obligations and responsibilities. Indigenous peoples
have been struggling for many years to sustain our culture, despite a history of
policies designed to eradicate or assimilate our languages, our belief systems
and our ways of living.

In an interesting reversal of thinking, we are living in times where some
core values of Western society are being questioned. Some of the world’s
best thinkers now argue that aspects of Western culture seriously threaten
global ecologies. And we are witnessing global efforts to rethink some of these
Western value systems – these very same values that have been imposed on
our people to the detriment of our cultures and our systems of knowledge. This
is most striking where governments are working to develop responses to climate
change. Some of the responses to this will be dependent on Indigenous
traditional knowledge.

Indigenous peoples have the ability to interpret and react to the impacts of
climate change in creative ways, drawing on our traditional knowledge’s
and other technologies to develop solutions which may also help the wider
society in its attempts to cope with the changing climate. This reinforces the
argument that Indigenous peoples are vital to, and active in, the enhancement of
the ecosystems that inhabit our lands and are integral to the survival of
Australia’s
uniqueness.[2] However,
the current system does not adequately recognise or protect the role Indigenous
peoples play or the knowledge we collectively posses.

According to the United Nations Permanent Forum on Indigenous Issues, there
are Indigenous peoples living in approximately 70 countries throughout the
world, constituting approximately 350 million people. This includes around 5,000
distinct peoples and over 4,000 languages and cultures, as well as many diverse
Indigenous legal systems.

As discussed in chapter 5, Indigenous people’s cultural and
intellectual knowledge and understanding of our environments will be required to
contribute to mitigate and adapt to climate change in the national interest. The
reliance on Indigenous traditional knowledge in Australia is already well
established, particularly in regions that possess valuable biodiversity. For
example, the Federal Government’s Green Paper on Climate Change in
Australia discusses the need to investigate ‘the feasibility of
co-operative research centres to collect Indigenous
knowledge’.[3]

In the context of the climate change law and policy, and the development of
emissions trading schemes, the development of international and domestic
mechanisms that adequately protect Indigenous peoples from the misappropriation
and misuse of traditional knowledge is urgent.

Text Box 1: What is Indigenous traditional knowledge?

The International Council for Science (ICSU) define traditional knowledge
as:

A cumulative body of knowledge, know-how, practices and representations
maintained and developed by peoples with extended histories of interaction with
the natural environment. These sophisticated sets of understandings,
interpretations and means are part and parcel of a cultural complex that
encompasses language, naming and classification systems, resource use practices,
ritual, spirituality and
worldview.[4]

Indigenous
traditional knowledge generally means traditional practices and culture and the
knowledge of plants and animals and of their methods of propagation. It
includes:

  • expressions of cultural values
  • beliefs
  • rituals and community laws
  • knowledge regarding land and ecosystem
    management[5]

The rights to Indigenous traditional knowledge are generally
owned collectively by the Indigenous community (or language group, or tribal
group), as distinct from the individual. It may be a section of the community
or, in certain circumstances, a particular person sanctioned by the community
that is able to speak for or make decisions in relation to a particular instance
of traditional knowledge.

It is more often unwritten and handed down orally from generation to
generation, and it is transmitted and preserved in that way. Some of the
knowledge is of a highly sacred and secret nature and therefore extremely
sensitive and culturally significant and not readily publicly available, even to
members of the particular group.

The maintenance and protection of Indigenous traditional knowledge is
crucial to the maintenance of Indigenous culture. It is also valuable to
development policy and operations and the advancement of understandings of
sustainability on a global scale.

Collective intellectual property aspects of traditional
knowledge.

Indigenous traditional knowledge is not simply a different type of
intellectual property; it is a completely different
entity.[6]

Intellectual Property is a generic term for the various rights or bundles
of rights which the law accords for the protection of creative effort, in
particular, the economic investment in creative effort. Australian intellectual
property regimes are established and governed primarily through Commonwealth
legislation.[7]

The World Intellectual Property Organisation (WIPO) Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore, argue that the recognition and protection of indigenous
traditional knowledge has largely taken place within the parameters of
intellectual property law. However, they also recognise that this has been
limited due to the western constructs of intellectual property laws failure to
be able to accommodate the vastly different requirements for the protection of
indigenous traditional knowledge, such as the communal transgenerational
concepts of ownership, versus a focus on creativity and
individualism.[8]

While the UNPFII, WIPO and other international bodies are involved in raising
the importance of this issue and progressing the debate around the development
of international mechanisms to protect indigenous traditional knowledge’s,
it remains unresolved. This is largely due to the diversity of indigenous
communities including:

  • that indigenous communities are not uniform and reflect various competing
    and often conflicting values, particularly in relation to the variety and
    diversity of customary law and indigenous traditional knowledge
  • that systems of customary law devised to keep social order and maintain
    culture are localised, existing in a particular place, in a particular
    community, and related to particular circumstances of the environment and
    livelihoods
  • the conflicting world views of intellectual property and ownership and
    protection
  • the variety of terminology used and lack of a clear definition of what
    indigenous knowledge’s are
  • the intersection between indigenous traditional knowledge and various areas
    of the law, such as intellectual property law, environmental law, heritage and
    sustainable development, and more recently climate change law and policy, at
    international, national and local levels
  • the need for an international standard that is able to be implemented at the
    national level
  • the role of customary law and indigenous communities in providing guidance
    and protection to Indigenous peoples’ traditional
    knowledge.[9]

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2 Classes of threat to Indigenous traditional
knowledge

The preservation of Indigenous traditional knowledge is under threat. A
report provided by the Australian Institute of Aboriginal and Torres Strait
Islander Studies to the Secretariat of the Convention on Biological Diversity
identified the following threats to Indigenous traditional knowledge:

  • political pressures – the recognition and standing of Indigenous
    traditional knowledge, including involvement in policy and legislative
    development
  • cultural integrity
  • social and economic pressures – assimilation, poverty, education,
    marginalisation of women, loss of language
  • territorial pressures – deforestation, forced displacement and
    migration
  • exploitation of traditional knowledge – bioprospecting,
    objectification
  • development policy – agricultural and industrial development
  • globalisation and trade
    liberalisation.[10]

The lack of protection on a national level intensifies these
threats. Climate change impacts and responses, particularly those resulting in
increased bioprospecting[11]of
Indigenous knowledge, will also heighten the urgency of the need for a national
Indigenous traditional knowledge regime.

Within Australia, despite the existing evidence base in this area, mechanisms
that protect and maintain Indigenous traditional knowledge remain significantly
inadequate at all levels of government. As identified by the Law Reform
Commission of Western Australia, as intellectual property laws are the
jurisdiction of the Commonwealth Government

the ability of the Western Australian Government to recognise Aboriginal
customary laws in relation to Indigenous cultural and intellectual property
rights is limited to the development of protocols and to the support of relevant
amendment to Commonwealth
legislation.[12]

Additionally, the Land Justice Group specifically asked the Victorian
Government in 2006 to amend their Aboriginal Heritage Act to include the
protection ‘folklore’ as defined in Part IIA of the Aboriginal and
Torres Strait Islander Heritage Protection Act
1984.[13]

The AHA (s 4) should be amended to ensure the protection of Aboriginal
‘folklore’ as defined under the Commonwealth ATSI Heritage
Protection Act
1984 (s 21A) to include ‘songs, rituals, ceremonies,
dances, art, customs and spiritual
beliefs’.[14]

This request fell on deaf ears and Part IIA has subsequently been
repealed.

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3 The existing framework

Indigenous peoples’ right to have our traditional knowledges recognised
and protected is currently provided for in a number of existing international
treaties. In Australia, there are a number of national and regional (State
Government) arrangements that attempt to address the lack of protection
domestically, including cultural heritage legislation. Additionally, there is an
increasing body of research that provides useful principles for inclusion in
international and domestic regimes established to protect and maintain
Indigenous traditional knowledge.

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3.1 International

The table below provides a summary of the major international instruments
that recognise the right of Indigenous peoples to protect and enjoy their
traditional knowledge. Appendix 4 provides an overview of the international
framework for Indigenous engagement in climate change policy. Indigenous
traditional knowledge is relevant and should be incorporated into policies
developed across each of the areas considered in Appendix 4.

Table 1: Summary of major international instruments that recognise
Indigenous peoples’ right to protect their traditional knowledge

International Instrument
Provision
The Universal Declaration of Human Rights
Article 27
The International Covenant on Economic, Social and Cultural Rights
Article 15, paragraph 1 (c)
The International Covenant on Civil and Political Rights
Article 27
The Convention on Biological Diversity
Article 8 (j)
The International Labour Organisation Convention No.169 concerning
Indigenous and Tribal Peoples in Independent Countries
Articles 13, 15, 23
Agenda 21
Paragraph 26.1
The Rio Declaration on Environment and Development
Principle 22
The Declaration on the Rights of Indigenous Peoples
Articles 11 and 31

The Declaration on the Rights of Indigenous Peoples draws on other major
instruments to provide the most explicit recognition internationally of
Indigenous people’s rights to their traditional knowledge:

Indigenous peoples have the right to maintain, control, protect and develop
their cultural heritage, traditional knowledge and traditional cultural
expressions, as well as the manifestations of their sciences, technologies and
cultures, including human and genetic resources, seeds, medicines, knowledge of
the properties of fauna and flora, oral traditions, literatures, designs, sports
and traditional games and visual and performing arts. They also have the right
to maintain, control, protect, and develop their intellectual property over such
cultural heritage, traditional knowledge, and traditional cultural
expressions.[15]

The Convention on Biological Diversity provides specific opportunities for
introducing measures to recognise and protect Indigenous knowledge. Article 8(j)
of the Convention encourages countries 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 arsing from the utilisation of such knowledge, innovations and
practices.[16]

Article 8(j) specifically gives recognition firstly to the traditional
knowledge, innovations and practices of Indigenous people and local communities
while also speaking strongly for its protection, preservation and maintenance.
Article 8(j) also provides that the use of Indigenous traditional knowledge,
innovations and practices should only occur with the approval and involvement of
the Indigenous or local community and that any benefits that arise from its use
is to be shared with the people or community from which that knowledge
originated. [17]
The World Summit
on Sustainable Development and the Conference of Parties of the Convention on
Biological Diversity are currently lobbying internationally for intensified
negotiations towards an ‘international regime on access and
benefit-sharing’ to be completed by
2010.[18] This would coincide with
the commencement of Australia’s Carbon Pollution Reduction Scheme and
provide Indigenous peoples with an opportunity to share in the economic benefits
that may arise as a result of the relevant knowledge we posses about our lands
and waters.

The World Intellectual Property Organisation (WIPO) Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (the IGC), which met for the first time in 2001, is in discussions
about draft provisions for the enhanced protection of traditional knowledge and
traditional cultural expressions against misappropriation and
misuse.[19]

WIPO's work in these areas involves close cooperation with other
international organisations and NGOs, as well as the organisation of a wide
range of capacity-building activities. Capacity-building resources include
practical guidelines for indigenous and local communities on developing
intellectual property protocols, and information technology tools for managing
intellectual property issues when digitising intangible cultural heritage, being
developed within the Creative Heritage
Project.[20]

Significant consideration to the development of an international regime on
access and benefit-sharing has also been given by the United Nations Permanent
Forum on Indigenous Issues.

Discussions to date have considered the following issues:

  • human rights treaties and other existing or emerging instruments that are
    applicable to traditional knowledge and genetic resources
  • elements of customary law that are vested in traditional knowledge
    protection and transmission
  • an analysis of indigenous participation, including the levels and roles in
    decision-making, including measures to ensure compliance with free, prior and
    informed consent
  • options and opportunities in the proposed certificate of origin, source or
    legal provenance from genetic resources
  • the role of customary law in the protection of traditional knowledge and
    development of regimes on access to genetic resources and
    benefit-sharing.[21]

In applying these principles at the domestic and national level, it
is envisaged that an international access and benefit-sharing regime would be
supported by national legislation that addresses a sui-generis protection
of indigenous traditional knowledge, innovation and practices, ensuring
compliance.

The United Nations University (UNU) Centre on Traditional Knowledge

The UNU has been exploring the feasibility of establishing a research and
training centre on traditional knowledge since 2004. A Traditional Knowledge
Institute (TKI) has since been established and is hosted at Charles Darwin
University, with an initial commitment of $2.5m AUD (approx $2.2m USD) from the
Northern Territory Government.[22] This centre has the potential to play a key role in efforts addressing
traditional knowledge and indigenous communities, both nationally and
internationally. However it will require a strong policy and financial
commitment from the Australian Government including dedicated capital resources
to enable the UNU TKI to become sustainably self sufficient.

Text Box 2: The United Nations University (UNU) Centre on Traditional
Knowledge

The UNU TKI aims to promote and strengthen research on traditional
knowledge of indigenous and local communities conducted from a global
perspective, grounded in local experience. In particular, the Institute seeks to
contribute to:

  • change mindsets and paradigms about the role of traditional knowledge in our
    society and in key sectors such as academia, government and business
  • increasing the recognition and importance of traditional knowledge
  • developing the application of traditional knowledge in a broad range of
    contexts (e.g. ecosystem management and biotechnology)
  • developing strategies for the preservation and maintenance of traditional
    knowledge
  • facilitating the development of the capacity of indigenous communities to
    conserve and apply their knowledge in an increasingly globalised
    economy.[23]

The UNU TKI will investigate the threats to traditional
knowledge, methods to maintain traditional knowledge, and the resilience of
traditional knowledge systems. It will also consider the links between
conventional and indigenous scientific systems while addressing some of the
important questions this raises both in terms of research and capacity
development, including:

  • traditional knowledge and climate change
  • traditional knowledge and water management
  • traditional knowledge and biological resources
  • traditional knowledge and marine management
  • traditional knowledge and forestry
  • traditional knowledge and international policy making.

A UNU-IAS pilot research programme on traditional knowledge, the
Traditional Knowledge Initiative, was established in 2007 with the generous
support of the Christensen Fund, a leading US based foundation active in the
areas of cultural and biological diversity. The pilot programme is an important
step in the process towards the establishment of a permanent UNU TKI.

Key pilot activities include:

  • Climate change and indigenous peoples
  • A book on the role of traditional knowledge
  • Water management and traditional knowledge
  • Traditional knowledge Bulletin
  • Pacific Islands
    programme[24]

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3.2 Domestic

In Australia, non-Indigenous intellectual property is protected under various
intellectual property laws, including:

  • the Copyright Act
    1968[25]
  • the Patents Act
    1990[26]
  • the Trademarks Act
    1995[27]

Australian domestic policy provides for the recognition of
Indigenous traditional knowledge in its environmental protection regulations,
particularly concerning knowledge held by Indigenous people about biological
resources. However, existing intellectual property laws offer limited scope for
the recognition of Indigenous peoples’ rights in biodiversity related
knowledge and practices.[28] While
native title, cultural heritage and environmental laws provide some recognition
and protection, it is currently insufficient.

The Native Title Act 1993 (Cth), establishes principles for the
recognition of customary property rights, including rights in knowledge, based
on the traditional laws and customs observed and practiced by the native title
holders. While traditional owners are required to disclose their traditional
knowledge in order to have their native title recognised, it provides some
protection for Indigenous traditional knowledge particularly in relation to
information about particular sites that may be classified by the traditional
owner groups as being sacred. This information is classified as confidential, in
many instances held by the Native Title Representative Body or Land Council, and
access is restricted only to those who have been nominated by the traditional
owners of that information.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1986
also has the potential to provide broader protection for Indigenous traditional
knowledge. The purpose of this legislation is to preserve and protect areas and
objects on Iands and waters that are of particular significance to Indigenous
people in accordance with their traditional law and
custom.[29] Although this
legislation is currently limited to the protection of physical heritage, and
provides no mechanism to protect the secret and sacred knowledge relating to
significant areas[30], the Minister
has the power to make a declaration in relation to areas of significance to
Indigenous peoples which are under threat. A declaration under subsection 9(1)
or 10(1) in relation to an area shall:

  1. describe the area with sufficient particulars to enable the area to be
    identified
  2. contain provisions for and in relation to the protection and preservation of
    the area from injury or
    desecration.[31]

Provisions provide for both emergency coverage of threatened areas
for up to 60 days, and coverage for longer periods of time as declared by the
Minister.[32]

Additionally, the National Heritage List and the Commonwealth Heritage List
are established under the Environment Protection and Biodiversity
Conservation Act
1999 (EPBC Act), the Australian Government's central piece
of environmental legislation. However, this Act and the Heritage lists are
limited to matters of national environmental significance. Issues of non
national significance come under the jurisdiction of the States.

The Australian Heritage Council, the expert advisory body on heritage matters
which draws on the knowledge of Indigenous experts, and the Indigenous Advisory
Committee (IAC) provide advice to the Minister on the operation of the EPBC Act
taking into account their knowledge of the land, conservation and the use of
biodiversity.

As discussed in chapter 5, the scope of the IAC to be directive in their
engagement is limited by their terms of reference. This is of particular concern
in the development of climate change policy.

The protection of Indigenous peoples intellectual property will be a specific
challenge for government and Indigenous groups, particularly where the
protection of intellectual property in Australia is afforded as an individual
protection and does not provide for communal or group protection.

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4 Protection of Indigenous
Knowledge’s

Opportunities to preserve and value Indigenous Traditional Knowledge are
endangered by the range of problems within our environment and communities
today. Avenues for the preservation of traditional knowledge are fading and are
at risk of being lost altogether. Loss of traditional knowledge will result in a
decline of Indigenous identity and a severe reduction in the recognition and
understanding of an invaluable sustainable knowledge
system.[33]

At the local level, Indigenous people have also been actively developing
strategies for recording and protecting their traditional knowledge’s. For
example, traditional owners in Cape York have been actively recording their
knowledge about the biodiversity and ecosystems which inhabit their lands and
waters, through the Traditional Knowledge Revival Pathways (TKRP).

Text Box 3: Traditional Knowledge Revival
Pathways[34]

The TKRP was developed from the aspirations of Indigenous Elders, to
preserve and recognise traditional indigenous knowledge. Through a grassroots
methodology, the project is connecting Indigenous groups, to recognise and
strengthen traditional knowledge to benefit environment and community well
being, for present and future generations.

This project is based on ensuring the survival of cultural knowledge, and
the opportunity to demonstrate practices that have the ability to
‘innovate’ contemporary management and community outcomes for the
benefit of all generations to come.

The TKRP supports community aspirations with the recording and applying of
their knowledge to strengthen outcomes for traditional and contemporary
wellbeing. TKRP is currently operating with seven traditional owner groups
including:

  • Wik people - Aurukun
  • Northern Gulf Indigenous Savannah Group (NGISG - includes seven language
    groups)
  • Kuku-Thaypan people – Lakefield National Park, Laura region
  • Buru people – Chinacamp - Wujal Wujal, Cooktown region
  • Kuku Yalanji people - Shipton Flats, Wujal Wujal, Cooktown region
  • Lamalama people - Kalpowar – Laura region
  • Moriori – New Zealand
TKRP seeks to support Indigenous elders to mentor the process of
Indigenous knowledge research and recording throughout Australia and with
interests Inter-nationally. The project has a demonstrated record of success,
with a focused methodology, that has been built over time from local
communities, and is rapidly disbursing its recording and mentoring methodology
into other regions including New Zealand.

Project Outcomes

The Project is achieving the following:

  • Transfer of traditional knowledge from the elders to their young people
    based on the traditional methods as determined by the elders.
  • Digitally recording this traditional knowledge before it is lost
    forever.
  • Storing knowledge onto multi-versions of a digital knowledgebase.
  • Incorporating traditional knowledge in cooperative land management
    strategies and building this practice into “best practice
    principles” in all land management.
  • Building and improving the profile of Indigenous knowledge and its
    appreciation with other land managers and users both nationally and
    internationally. (Eg, pastoralists, government and the general public).
  • Creating practical action, research-driven, projects as live case studies to
    better collaborative land and community management.
Community Training Program

The training program is based on community mentoring community on the
skills and methodology of the TKRP project. This includes:

  • the recording of traditional knowledge
  • use of digital camera
  • editing and database use
  • TKRP presentations
  • traditional land management projects
  • TKRP Web.
TKRP is continuing to develop by assisting the elders to conduct
their own research on their own terms. 

The traditional owner groups that live on the Murray-Darling River Basin have
also been conducting use and occupancy mapping of the activities they conduct on
their lands and waters

Text Box 4: Use and Occupancy Mapping – Murray Darling River
Basin

The Living Murray Indigenous Partnerships Program (IPP) established in
February 2006, recognises Indigenous people's spiritual and cultural connection
to their country, and their aspirations to be actively involved in managing the
environment.

An approach, developed in
Canada[35], and adopted by the
Living Murray Indigenous Partnerships Program, is being introduced to engage
Indigenous people in a meaningful way. It does this by applying a social science
methodology to map Indigenous people’s contemporary relationship with icon
sites. This approach is based on the principle of informed consent. A Canadian
First Nations Chief highlighted the importance of this work:

The Supreme Court of Canada, in Delgmuukw, said Aboriginal title
must be established by evidence of physical and legal occupancy, or tenure. The
principal way of establishing physical occupancy is to plot the First
Nation’s land use activities on a map. Therefore it is important for
nations and their advisors to know how to do this research and how to do it
well.[36]

The Murray Darling Basin Commission (MDBC) has worked with the Murray Lower
Darling River Indigenous Nations (MLDRIN) and other representatives of
Traditional Owners to gain support for the concept, and then undertook a pilot
mapping project with an Indigenous community. As part of this pilot, use and
occupancy maps have successfully been produced for several individuals at two of
the icon sites.

Indigenous input will be provided into each of the icon site environmental
management plans. Indigenous Working Groups will ensure that Indigenous
involvement is undertaken in culturally appropriate ways. Local Indigenous
facilitators are planned to be employed at each of the icon sites to work with
their communities.

Over time these communities will produce "Use and Occupancy Maps" for each
icon site. These maps can help identify and record the spiritual, cultural,
environmental, social and economic interests of Indigenous people for each icon
site. This approach focuses on Indigenous people's contemporary connections to
the land in a way that can be directly related and considered in developing icon
site management activities.
Considerable effort has been invested in
involving and informing Indigenous community members regarding use and occupancy
mapping, which is now gaining strong support within the Indigenous
community.

The maps can also be used as a basis for cultural heritage protection and
management, and help monitor the impacts of The Living Murray. Use and occupancy
mapping is sometimes referred to as the ‘geography of oral
tradition’.

The MDBC is working with Charles Sturt University to undertake a research
and monitoring program to measure the impacts and benefits of use and occupancy
mapping at the icon sites.

The MDBC is also closely involved in the development of the world’s
first textbook on use and occupancy mapping, currently being researched and
written in Canada. This involvement will ensure that the textbook will be
relevant to Australia and available for future training needs in the
Murray-Darling Basin.[37]

While processes for recording traditional knowledge are already developed by
Indigenous communities, principles contained in recommendation 81 of the
Final Report of the Law Reform Commission in Western Australia on Customary
Law
[38] (which are also in
accordance with international standards) provide a good foundation for the
protection of this knowledge and will be integral to the development of an
appropriate regime. Including to:

  • undertake direct consultation with Indigenous peoples as to their customary
    law and other requirements
  • ensure compliance with Indigenous peoples’ customary law and other
    requirements
  • seek free, prior and informed consent for the use of any Indigenous
    traditional knowledge from the custodians of that traditional knowledge
  • seek free, prior and informed consent for access to Indigenous lands and
    waters for any purposes, including collection
  • ensure ethical conduct in any consultation, collection, or other
    processes
  • ensure the use of agreements on mutually agreed terms with Indigenous
    peoples for all parts of the process
  • devise equitable benefit-sharing arrangements
  • acknowledge the contribution of Aboriginal peoples.

Additionally, the Desert Knowledge Cooperative Research Centre
(Desert Knowledge CRC) have developed a comprehensive Protocol for Aboriginal
Knowledge and Intellectual
Property.[39]
This protocol has
been developed with specific relevance to the Aboriginal communities that Desert
Knowledge CRC work closely with.

The protocol acknowledges and respects that those Aboriginal communities and
groups will have their own protocols that must also be observed, understood and
engaged with as an essential ongoing part of any process with Indigenous people.
However, the protocol serves as a very useful guide towards best practice in
ethics, confidentiality, equitable benefit sharing and in managing research
information.[40] I have included
the complete protocol at Appendix 8 as an example of what should be considered
in the development of a National Indigenous Knowledge Use and Protection
Protocol.

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5 Principles of Protection

In the previous chapters, I have raised a number of concerns and
opportunities relevant to Indigenous peoples and our communities to engage in
emerging carbon and environmental markets and the developing national emissions
trading scheme. I have discussed the significant contributions and compromise
that Indigenous people in Australia will be required to make to assist with
mitigation and adaptation efforts, and to increase the capacity for the
Australian environment not only to withstand the impacts of climate change, but
to ensure that our country is in a position to effectively participate in the
emerging global markets.

A huge proportion of Australia’s habitat is on Indigenous owned
land...we rely on the dedication and skills of indigenous people to conserve it
for all Australians.[41]

This reliance on and expectation of Indigenous peoples in addressing the
impacts of climate change in turn deserves the respect and protection of
Indigenous peoples right to engage effectively in related processes. If this
relationship is to be mutual it will also mean that Indigenous people will need
to be protected in doing so.
In conclusion, Indigenous people and various
reports on the subject of Indigenous traditional knowledge, including the Our
Culture: Our Future,
argue that the current legal framework offers limited
recognition and protection of Indigenous traditional knowledge.

Research suggests the introduction of sui generis legislation to
protect Indigenous intellectual and cultural material in a way which accords
with Indigenous customary law.

Such a system will require mechanisms firstly, that do not assume that
Indigenous traditional knowledge is freely and absolutely available for
appropriation, and secondly, in light of emerging climate change policy, affords
the right to share equitably in the benefits derived from the uses of this
knowledge.

The principle of free, prior, and informed consent should be applied to the
use and appropriation of Indigenous knowledge. The United Nations Permanent
Forum concluded that:

The free, prior and informed consent principle in the context of intellectual
property can mean defensive protection in which any use of traditional
knowledge, and in particular acquisition of intellectual property rights over
traditional knowledge and derivatives thereof, without the prior consent of the
community, can be prevented. Free, prior and informed consent can also support
positive forms of protection, in which, for example, a community would have the
right to authorize any use or commercialization of its knowledge, either by
itself or by a third party, that would be to the community’s financial and
other advantage.[42]

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5.1 A framework for protection

As identified earlier, the current arrangements for protecting intellectual
property rights are inadequate to protect Indigenous knowledges. With
significant challenges such as climate change ahead, a national legislative
regime is urgently required to enable the fullest possible protection for
Indigenous knowledges.

A national legislative regime framework for the protection of Indigenous
peoples in a changing climate will require:

  • An appropriate legislative framework
  • National principles for engagement
  • National principles for protection

(a) A Legislative framework that provides
for:

  • the full participation and engagement of Indigenous peoples in negotiations
    and agreements between parties
  • the adoption of and compliance with the principle of free, prior and
    informed consent
  • the protection of Indigenous interests, specifically access to our lands,
    waters and natural resources
  • the protection of Indigenous areas of significance, biodiversity, and
    cultural heritage
  • the protection of Indigenous knowledge relevant to climate change adaptation
    and mitigation strategies
  • access and benefit-sharing through partnerships between the private sector
    and Indigenous communities
  • non-discrimination and substantive equality.

(b) National Principles for
Engagement
[43] that
includes:

A Human Rights-Based Approach to Development:

  • All policies and programs relating to indigenous peoples and communities
    must be based on the principles of non-discrimination and equality, which
    recognise the cultural distinctiveness and diversity of indigenous peoples.
  • Governments should consider the introduction of constitutional and or
    legislative provisions recognising indigenous rights.
  • Indigenous peoples have the right to full and effective participation in
    decisions which directly or indirectly affect their lives.
  • Such participation shall be based on the principle of free, prior and
    informed consent, which includes governments and the private sector providing
    information that is accurate, accessible, and in a language the indigenous
    peoples can understand.
  • Mechanisms should exist for parties to resolve disputes, including access to
    independent systems of arbitration and conflict resolution.

Mechanisms for representation and engagement

  • Governments and the private sector should establish transparent and
    accountable frameworks for engagement, consultation and negotiation with
    indigenous peoples and communities.
  • Indigenous peoples and communities have the right to choose their
    representatives and the right to specify the decision-making structures through
    which they engage with other sectors of society.

Design, negotiation, implementation, monitoring, and evaluation

  • Frameworks for engagement should allow for the full and effective
    participation of indigenous peoples in the design, negotiation, implementation,
    monitoring, evaluation and assessment of outcomes.
  • Indigenous peoples and communities should be invited to participate in
    identifying and prioritising objectives, as well as in establishing (short and
    long term) targets and benchmarks.
  • There should be accurate and appropriate reporting by governments on
    progress in addressing agreed outcomes, with adequate data collection and
    disaggregation.
  • In engaging with indigenous communities, governments and the private sector
    should adopt a long term approach to planning and funding that focuses on
    achieving sustainable outcomes and which is responsive to the human rights and
    changing needs and aspirations of indigenous communities.

Capacity-building

  • There is a need for governments, the private sector, civil society and
    international organisations and aid agencies to support efforts to build the
    capacity of indigenous communities, including in the area of human rights so
    that they may participate equally and meaningfully in the planning, design,
    negotiation, implementation, monitoring and evaluation of policies, programs and
    projects that affect them.
  • Similarly, there is a need to build capacity of government officials, the
    private sector and other non-governmental actors, which includes increasing
    their knowledge of indigenous peoples and awareness of the human rights based
    approach to development so that they are able to effectively engage with
    indigenous communities.
  • This should include campaigns to recruit and then support indigenous people
    into government, private and non-government sector employment, as well as
    involve the training in capacity building and cultural awareness for civil
    servants.
  • There is a need for human rights education on a systemic basis and at all
    levels of society.

(c) National Principles for Protection
that:

  • undertake direct consultation with Indigenous peoples as to their customary
    law and other requirements.
  • ensure compliance with Indigenous peoples’ customary law and other
    requirements.
  • seek free, prior and informed consent for the use of any Indigenous
    traditional knowledge from the custodians of that traditional knowledge.
  • seek free, prior and informed consent for access Indigenous lands and waters
    for any purposes, including collection.
  • ensure ethical conduct in any consultation, collection, or other
    processes.
  • ensure the use of agreements on mutually agreed terms with Indigenous
    peoples for all parts of the process.
  • devise equitable benefit-sharing arrangements.
  • formally acknowledge the contribution of Aboriginal peoples, including for
    example co-authorship.

Recommendations

7.1. That the Australian Government engage Indigenous peoples around the country to develop a legislative framework that provides for protection of Indigenous knowledge’s and a protocol for the use of this knowledge.

7.2. That all governments amend relevant legislation and policy, such as the Native Title Act, Cultural Heritage legislations and various land rights regimes, to ensure consistency with the proffered national legislative regime framework. This should extend to all legislation that relates to Indigenous peoples and their rights and interests such as education, health, tourism, the arts and so on.

7.3. The proffered national legislative regime framework should be applied to all climate change and water policy and processes, including domestic and international negotiations relating to carbon, water and environmental markets.

 

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[1] M Davis, (Science, Technology,
Environment and Resources Group), Biological Diversity and Indigenous
Knowledge,
29 June 1998, Research Paper 17 1997-98, Parliament of Australia.
At: www.aph.gov.au/library/Pubs/RP/1997-98/98rp17.htm,
(viewed 22 September 2008).
[2] United Nations Permanent Forum on Indigenous Issues, Climate Change and
Indigenous peoples.
At: www.un.org/esa/socdev/unpfii/en/climate_change.html,
(viewed 21 July 2008).
[3] The Hon
Peter Garrett, Minister for the Environment, Water, Heritage and the Arts,
Correspondence with the Aboriginal and Torres Strait Islander Social Justice
Commissioner – Request for Information in preparation of the Native Title
Report 2008, 29 August 2008.
[4] International Council for Science, Science and Traditional Knowledge, Report
from the ICSU Study Group on Science and Traditional Knowledge,
Paper
delivered to 27th General Assembly of ICSU, Rio De Janeiro, Brazil,
September 2002, p 3.
[5] United
Nations Permanent Forum on Indigenous Issues, Report of the Secretariat on
Indigenous traditional knowledge,
UN Doc E/C.19/2007/10. At: http://daccessdds.un.org/doc/UNDOC/GEN/N07/277/15/PDF/N0727715.pdf?OpenElement (viewed15 September 2008).
[6] United Nations Permanent Forum on Indigenous Issues, Report of the
Secretariat on Indigenous traditional knowledge,
UN Doc E/C.19/2007/10. At: http://daccessdds.un.org/doc/UNDOC/GEN/N07/277/15/PDF/N0727715.pdf?OpenElement(viewed
15 September 2008).
[7] Law Reform
Commission of Western Australia, Aboriginal Customary Laws, Final Report
– The interaction of Western Australian law with Aboriginal law and
culture,
Project 92, September 2006, p 265, Government of Western
Australia.
[8] United Nations
Permanent Forum on Indigenous Issues, Report of the Secretariat on Indigenous
traditional knowledge,
UN Doc E/C.19/2007/10, p8. At: http://daccessdds.un.org/doc/UNDOC/GEN/N07/277/15/PDF/N0727715.pdf?OpenElement (viewed 15 September 2008).
[9] United Nations Permanent Forum on Indigenous Issues, Report of the
Secretariat on Indigenous traditional knowledge,
UN Doc E/C.19/2007/10. At: http://daccessdds.un.org/doc/UNDOC/GEN/N07/277/15/PDF/N0727715.pdf?OpenElement(viewed
15 September 2008).
[10] G Kelly
(AIATSIS), Report on Threats to the Practice and Transmission of Traditional
Knowledge Regional Report: Asia and Australia,
Phase II of the Composite
Report on the Status and Trends Regarding the Knowledge, Innovation and
Practices of Indigenous Peoples and Local Communities relevant to the
Conservation and Sustainable Use of Biodiversity, 2005, UN Doc:
UNEP/CBDWG8J/4/INF/4, p 25.
[11] Bioprospecting refers to the exploration of biodiversity (plant-related
substances) for commercially valuable generic and biochemical resources. Law
Reform Commission of Western Australia, Aboriginal Customary Laws, Final
Report – The interaction of Western Australian law with Aboriginal law and
culture,
Project 92, September 2006, p 266, Government of Western
Australia.
[12] Law Reform
Commission of Western Australia, Aboriginal Customary Laws, Final Report
– The interaction of Western Australian law with Aboriginal law and
culture,
Project 92, September 2006, p 265, Government of Western
Australia.
[13]Aboriginal and
Torres Strait Islander Heritage Protection Act 1984,
s
21A.
[14] Victorian Traditional
Owner Land Justice Group, Towards a Framework Agreement between The State of
Victoria and the Victorian Traditional Owner Land Justice Group,
Discussion
Paper, 26 August 2006, p 5.
[15] The Declaration on the Rights of Indigenous Peoples, Article 31, paragraph
1.
[16] Convention on Biological
Diversity, Article 8(j).
[17] H
Fourmile-Marrie & G Kelly, The Convention on Biological Diversity and
Indigenous People: Information concerning the implementation of decisions of the
Conference of the Parties under the Convention on Biological Diversity
,
Centre for Indigenous History and the Arts, University of Western Sydney, 2000,
pp 3-4.
[18] J Carino (Tebtebba
Foundation), International Expert Group Meeting on the Convention on
Biological Diversity’s International Regime on Access and Benefit-Sharing
and Indigenous Peoples’ Human Rights,
United Nations Permanent Forum
on Indigenous Issues Secretariat, 17-19 January 2007, New
York.
[19] The World Intellectual
Property Organisation, Traditional Knowledge, Genetic Resources and
Traditional Cultural Expressions/Folklore.
At: http://www.wipo.int/tk/en/ (viewed 15
December 2008).
[20] W Wendland
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heritage,
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[21] United Nations Permanent Forum on Indigenous Issues, Report of the
international expert group meeting on the international regime on access and
benefit-sharing and indigenous peoples’ human rights of the Convention on
Biological Diversity,
Sixth Session, 14-25 May 2007, New
York.
[22] United Nations
University, Institute of Advance Studies, Traditional Knowledge Initiative. At: http://www.ias.unu.edu/sub_page.aspx?catID=107&ddlID=302,
(viewed 12 January 2009).
[23] For further information, see the Traditional Knowledge Initiative website at:
www.unutki.org.
[24] For further
information, see the Traditional Knowledge Initiative website at:
www.unutki.org.
[25] Copyright is
a set of specific rights granted to the creators of literacy, dramatic, artistic
or musical works and the makers of sound recordings, films and audio recordings.
Copyright does not need to be registered as defined by the Australian Institute
of Aboriginal and Torres Strait Islander Studies, and the Aboriginal and Torres
Strait Islander Commission, Our Culture: Our Future, Report on Australian
Indigenous Cultural and Intellectual Property Rights,
M Frankel and T Janke,
1998, p 51.
[26] A patent is a
right to protect inventions. The patentee is granted the exclusive right (for 20
years), to exploit and to authorise another person to exploit the invention. To
be patentable, and invention must include a product or process which is new,
involve an inventive step and be useful. Patent protection is not automatic and
patents must be applied for by the Australian Industrial Property Organisation,
as defined by the Australian Institute of Aboriginal and Torres Strait Islander
Studies, and the Aboriginal and Torres Strait Islander Commission, Our
Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual
Property Rights,
M Frankel and T Janke, 1998, p
565.
[27] A trademark is a sign
used to indicate the trade origin or source of goods or services. A trade mark
is registered for up to 10 years initially and applications can be made to have
the trademark renewed. Trade Marks Act 1995, s 17.
[28] M Davis, (Science,
Technology, Environment and Resources Group), Biological Diversity and
Indigenous Knowledge,
29 June 1998, Research Paper 17 1997-98, Parliament of
Australia. At: www.aph.gov.au/library/Pubs/RP/1997-98/98rp17.htm (viewed 22 September 2008).
[29] Australian Government, Department of the Environment, Water, Heritage and the
Arts, Heritage, Protecting Indigenous heritage places. At: http://www.environment.gov.au/heritage/about/indigenous/index.html (viewed 25 September 2008).
[30] M Davis, (Science, Technology, Environment and Resources Group), Biological
Diversity and Indigenous Knowledge,
29 June 1998, Research Paper 17 1997-98,
Parliament of Australia. At: www.aph.gov.au/library/Pubs/RP/1997-98/98rp17.htm (viewed 22 September
2008).
[31] Aboriginal and
Torres Strait Islander Heritage Protection Act 1984,
s
11.
[32]Aboriginal and Torres
Strait Islander Heritage Protection Act 1984
, ss
9-10.
[33] Traditional Knowledge
Revival Pathways. At: http://tkrp.com.au/index.php?option=com_content&task=view&id=17&Itemid=26 (viewed 1 October 2008).
[34] All
information contained in this case study was obtained from the TKRP website. At: http://tkrp.com.au/index.php?option=com_content&task=view&id=17&Itemid=26 (viewed 1 October 2008).
[35] T
Tobias, Chief Kerry’s Moose: a guidebook to land use and occupancy
mapping, research design and data collection,
A joint publication of the
Union of BC Indian Chiefs and Ecotrust Canada, 2000, Canada. At: http://www.ubcic.bc.ca/Resources/tus.htm (viewed 12 January 2009).
[36] Chief Arthur Manual in T Tobias, Chief Kerry’s Moose: a guidebook to
land use and occupancy mapping, research design and data collection,
A joint
publication of the Union of BC Indian Chiefs and Ecotrust Canada, 2000, Canada.
At: http://www.ubcic.bc.ca/Resources/tus.htm (viewed 12 January 2009).

[37] Information for this
case study was obtained from, Murray Darling Basin Commission, Indigenous
Partnership.
At: http://www.mdbc.gov.au/subs/annual_reports/AR_2006-07/part1_1.htm,
and The Living Murray, Indigenous Partnerhips, at: http://www.thelivingmurray.mdbc.gov.au/communities (both viewed 1 October
2008).
[38] Law Reform Commission
of Western Australia, Aboriginal Customary Laws, Final Report – The
interaction of Western Australian law with Aboriginal law and culture,
Project 92, September 2006, p 267, Government of Western
Australia.
[39] Desert Knowledge
Cooperative Research Centre, Protocol for Aboriginal Knowledge and
Intellectual Property.
At: www.desertknowledgecrc.com.au (viewed 15 December 2008).
[40] Desert Knowledge Cooperative Research Centre, Protocol for Aboriginal
Knowledge and Intellectual Property.
At: www.desertknowledgecrc.com.au (viewed 15 December 2008).
[41] The Hon P Garrett, Minister for the Environment, Water, Heritage and the Arts, Millions for ranger work, Koori Mail, Wednesday 22 October 2008, p
3.
[42] United Nations Permanent
Forum on Indigenous Issues, Report of the International Workshop on
Methodologies regarding Free, Prior and Informed Consent and Indigenous
Peoples
, New York, 17-19 January 2005, p 8. At: http://www.hreoc.gov.au/social_justice/conference/engaging_communities/report_of_the_international_workshop_on_fpic.pdf (viewed 3 October 2008).
[43] These guidelines were developed at the International Workshop on Engaging
with Indigenous Communities
which took part at the International
Conference on Engaging Communities
in Brisbane in August 2005. Human Rights
and Equal Opportunity Commission and United Nation Permanent Forum on Indigenous
Issues, Engaging the marginalised: Report of the workshop on engaging with
Indigenous communities,
HREOC, Sydney, and United Nations, New York 2005. At www.humanrights.gov.au/social_justice/.