04 February 2019


'An international approach to establishing a Competent Authority to manage and protect traditional knowledge' by Fiona Martin, Ann Cahill, Evana Wright and Natalie Stoianoff in (2019) Alternative Law Journal comments
This article discusses the establishment of a Competent Authority in accordance with the Nagoya Protocol to ensure that traditional knowledge of Indigenous communities is accessed subject to free, prior and informed consent and the fair and equitable sharing of benefits arising out of such use. It builds on research expressing the view that the design and development of a Competent Authority should take a grass roots approach. It analyses the authorities established in the Cook Islands and Vanuatu that include significant Indigenous voice and concludes with comments on the attributes of each system and its limitations. 
 The authors state
The purpose of the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity’ 2010 (the Nagoya Protocol) is to implement one of the three main objectives of the Convention on Biological Diversity 1992 (CBD). The Protocol focuses on the fair and equitable sharing of benefits arising from the utilisation of genetic resources. Article 13 of the Nagoya Protocol sets out criteria for the establishment of what is termed a ‘Competent Authority’. A Competent Authority is recommended by the United Nations to ensure that Indigenous communities are properly consulted and can provide free, prior and informed consent when their traditional knowledge is accessed and that they are able to take advantage of fair and equitable benefits when this occurs. 
This article provides insights into what is meant by a Competent Authority at the international level, and by two countries that have established competent authorities that are separate to their governments. It builds on the work of other researchers in this area, highlighting the fact that for a Competent Authority to function effectively its design, development and operation must incorporate participation from Indigenous Australians. The authors have examined the legislation of 69 different countries that have Indigenous populations and determined that 20 of these countries have legislation providing for a Competent Authority regulating access and benefit sharing in relation to traditional knowledge. On further examination of the legislation it has been found that only two countries out of the 20 – the Cook Islands and Vanuatu – have established Competent Authorities that are separate to government. The article examines the approaches taken in each of these countries and concludes with thoughts about the effectiveness of the Cook Islands and Vanuatu processes.