Native Title Report 2008 - Chapter 7

Native Title Report 2008

Chapter 7

The
Protection of Indigenous
knowledge’s

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• 1 Overview
• 2 Classes of threat to Indigenous traditional knowledge
• 3 The existing framework
  • 3.1 International
  • 3.2 Domestic
• 4 Protection of Indigenous Knowledge’s
• 5 Principles of Protection
  • 5.1 A framework for protection

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.

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

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.

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).

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

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.

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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 27^th 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
and J van Weelde, WIPO's capacity building tools for indigenous cultural
heritage, Arts Law Centre of Australia Online. At: http://www.artslaw.com.au/ArtLaw/Archive/08WIPOtools.asp (viewed 15 December 2008).

^[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/.