The Nagoya Protocol is promoted as
a new international standard for using Genetic Resources and associated Traditional Knowledge. It will be important for Australian and international users of Australian Genetic Resources to demonstrate compliance with Australian law, and therefore, compliance with the Nagoya Protocol. A National Indigenous Cultural Authority should be part of the implementation framework, to facilitate and assist collaborations with Aboriginal and Torres Strait Islander Peoples.The Congress recommends the Australian Government take the following steps to establish a NICA, implement the Nagoya Protocol and recognise Indigenous Cultural Intellectual Property rights:
The establishment of a National Indigenous Cultural Authority
1. Prioritise the establishment of a National Indigenous Cultural Authority to cover the holistic definition of Indigenous Cultural Intellectual Property, in Australia’s National Cultural Policy and a Nagoya Protocol Implementation Plan;
2. Appoint an Aboriginal and Torres Strait Islander Steering Committee to oversee the National Indigenous Cultural Authority project, working in partnership with a Government Inter‐Departmental Committee for Indigenous Cultural Intellectual Property and the Indigenous Advisory Committee under the Environmental Protection and Biodiversity Conservation Act and the Aboriginal and Torres Strait Islander Arts Board’s National Indigenous Reference Group; and
3. Fund development of a National Indigenous Cultural Authority through research, a business case, a public awareness campaign and national consultations.
The implementation of the Nagoya Protocol
4. Develop a timeframe for ratification of the Nagoya Protocol and an Implementation Plan to ensure all Australian laws, policies and practices are consistent with the Nagoya Protocol;
5. Amend the Nationally consistent approach for access to and the utilisation of Australia’s native genetic and biochemical resources Principles 7 and 11 to be consistent with the Nagoya Protocol and the principle of free, prior and informed consent;
6. Create a new offence under the Environmental Protection and Biodiversity Conservation Act to give effect to Article 15 and 16 of the Nagoya Protocol; and
7. Propose that the following responsibilities under the Nagoya Protocol are included in the mandate of a National Indigenous Cultural Authority:
a. Act as National Focal Point under Article 13 of the Nagoya Protocol for Article 8(j) of the Convention on Biological Diversity to ensure Aboriginal and Torres Strait Islander interests in Indigenous Cultural Intellectual Property are represented to Access Parties, Competent National Authorities, National Checkpoints and the Convention on Biological Diversity secretariat;
b. Act as National Checkpoint under Article 17 of the Nagoya Protocol to track and register Indigenous Cultural Intellectual Property interests and promote best practice protocols, working in collaboration with other National Checkpoints that have industry‐specific expertise and/or authority to penalise non‐compliance;
c. Contribute to the Clearing House Mechanism under Article 14 of the Nagoya Protocol by promulgating Australian practices and processes for working with Indigenous Cultural Intellectual Property to prospective international users and facilitating relationships between international users and ICIP holders;
d. Set national standards relating to the use of Genetic Resources and associated Traditional Knowledge for rights‐holders and stakeholders;
e. Assist with enforcement, access to legal advice and dispute resolution processes under any offence provisions created in the Environmental Protection and Biodiversity Conservation Act;
f. Develop a labelling system for authorised uses of Indigenous Cultural Intellectual Property and issue certificates of compliance; and
g. Promote the observance of Aboriginal and Torres Strait Islander customary laws and community protocols regarding the use of Indigenous Cultural Intellectual Property under Article 12.1.
The Recognition and Protection of Indigenous Cultural Intellectual Property
8. Work with a National Indigenous Cultural Authority (NICA) and Congress to develop a National Plan for the Legislative Recognition of Indigenous Cultural Intellectual Property (ICIP) rights that includes extensive national consultations on the form and content of ICIP rights and the role of a NICA in the promotion and protection of ICIP rights.
