Traditional Knowledge

'Traditional Knowledge as Intellectual Property Subject Matter: Perspectives from History, Anthropology, and Diverse Economies' (Queen Mary Law Research Paper No. 418/2024) by Graham Dutfield and Uma Suthersanen comments 

In May 2024, the World Intellectual Property Organization (WIPO), the UN specialised agency for intellectual property, will hold a diplomatic conference with a view to forging a new legal instrument to prevent patents from misappropriating traditional knowledge and associated genetic resources. Thus, after more than 20 years of discussion at WIPO, there is a genuine possibility of a binding legal instrument providing substantive protection of traditional knowledge. Whatever actually transpires, that in itself is a matter of socio-legal and historical importance. Our aim is two fold. First, we enquire whether treating traditional knowledge (TK) as an intellectual property (IP) problem lending itself to an IP-related solution can actually work. In this context, we take account of the likelihood of any adopted international instrument taking the form of a one-size-fits-all text providing legal protection for knowledge deemed “traditional” on the basis of its originating from autochthonous or other groups sharing similar circumstances and related, albeit far from identical, legal and economic interests. By autochthonous, we refer to peoples so rooted psychologically, spiritually and materially to their homeland that it is if they were sprung from the land; their land. Second, we consider whether alternative framings of “the TK problem” in more pluralistic and culturally informed and culturally sensitive forms within or outside IP law may be more promising. IP law of course arises from a myriad of rationales situated within different timelines but embedded within a largely Eurocentric or American discourse and worldview that may be an ill fit for autochthonous and other groups who one presumably are to be the beneficiaries of the kinds of instrument under negotiation. 

The perspective we adopt invites a more intercultural and better informed discourse within law itself, which we feel is absolutely necessary. This perspective is then juxtaposed on the diverse economies approach which seeks to harness different practices in order to break down our dominant view of the world as being predominantly capitalist, at least in the sense of being based on waged labour, and production of commodities for exchange in markets run by capitalist businesses.By employing a multidisciplinary and pluralistic approach, we can better address the challenges facing Indigenous people and governments in the context of current and forthcoming international rules on the governance of TK. 

Ontologies

'Connecting Science to Indigenous Knowledge: kaitiakitanga, conservation, and resource management' by Tara McAllister, Daniel Hikuroa and Cate Macinnis-Ng in (2023) 47(1) New Zealand Journal of Ecology 3521 comments 

Indigenous Knowledge (IK) provides effective solutions to environmental threats and pressures. Using approaches that fully include Indigenous concepts, ideas, worldviews, knowledge, process, and practice helps the recovery of threatened species and endangered ecosystems, but it is essential that such work engages with Indigenous Peoples and that engagement is respectful, reciprocal, and meaningful. We support using mātauranga (Māori knowledge, culture, values, and worldview) alongside science, because incorporating socio-cultural perspectives and initiatives allows sustainability to be addressed in a more holistic way. This collaborative group of Māori and Pākehā researchers brings a range of perspectives and expertise to the challenge of working at the interface of IK and science, and practices of conservation and resource management. In developing a deeper understanding of kaitiakitanga, which is often translated as “guardianship”, “stewardship”, or the “principle and practices of intergenerational sustainability”, when working in partnership with Māori, Western-trained scientists can meaningfully acknowledge Māori values, knowledge, process, and practice in their work. This enhanced consideration of kaitiakitanga requires bringing together intricately linked concepts such as whakapapa, rangatiratanga, mana, mauri, tapu, noa, and manaakitanga. In this paper, we aim to guide Western-trained scientists and other practitioners in understanding kaitiakitanga so that they can meaningfully engage through an enhanced understanding of Māori worldviews, knowledge, process, and practice. We also aim to highlight the synergies and differences between kaitiakitanga and conservation and resource management, whilst providing examples of how kaitiakitanga can be used to enhance conservation for holistic sustainability outcomes. We emphasise the benefits and importance of working with Māori communities for long-term partnerships based on mutual trust and respect.

The authors argue 

Aotearoa New Zealand’s already stressed natural environment is facing increasing threats and pressures (Brown et al. 2015; Norton et al. 2016; Ministry for the Environment & StatsNZ 2022). Invasive species, destructive fishing practices, extractive industries, a changing climate, and intensification of agriculture are examples of processes that are causing ongoing environmental degradation (Brake and Peart 2015; Clarkson et al. 2015; OECD 2017; Macinnis-Ng et al. 2021; Ministry for the Environment & StatsNZ 2022). We need to acknowledge customary ways to conserve threatened species and endangered ecosystems and enact resource management because the current methods and/or their implementation often exclude Indigenous peoples (e.g. Ruru et al. 2017). Using mātauranga (Māori knowledge, culture, values, and worldview) alongside science is an effective way forward, as weaving multiple knowledge- systems, socio-cultural perspectives and initiatives allows sustainability to be addressed in a more holistic way (Lyver et al. 2018; Marques et al. 2019; Hill et al. 2021). 

Indigenous practices of ecosystem management across the globe include a range of tools such as resource management and landscape patchiness incorporated with social dimensions of intergenerational knowledge transmission and the development of specific world views and cultural practices (Berkes et al. 2000). The global review by Berkes et al. (2000) draws parallels between adaptive management and Indigenous approaches because they include feedback learning and evolving understanding of dynamic systems. Recognition of the value of Indigenous Knowledge (IK), which emerges from a worldview that sees the people and the knowledge as being of the land, is growing in the international literatures of ecology and conservation with key papers like Berkes et al. (2000) receiving over 5000 citations. Alternative perspectives and highly detailed local knowledge combined with social mechanisms and customary practices in tune with environmental and ecological processes are key aspects of Traditional Ecological Knowledge (TEK; Berkes et al. 2000; Wehi et al. 2019). Although TEK is a subset of IK and is now widely acknowledged as an empirically sound and rich resource for community-based resource management (Lauer 2017), it has also been critiqued, because as conventionally practiced it can colonise IK by removing it from its cultural context and applying it within non-Indigenous management plans (McGregor 2004). So, despite having strong alignment with the definition of TEK in Berkes et al. (2000) we find the term Indigenous Knowledge better captures the evolving nature of modern Indigenous knowledges and remains consistent with ever-growing insights and expertise. In response to the bi-cultural approach being undertaken in Aotearoa New Zealand we use IK in general, otherwise mātauranga – the knowledge, culture, values, world view, process and practice of Māori, the Indigenous peoples of Aotearoa New Zealand. Therein bi-cultural approaches to conservation that include frameworks for effective collaboration and prevent cultural appropriation can empower local communities to build strong societal relationships with the natural world while addressing declines in biological and cultural well-being (Lyver & Tylianakis 2017; Lyver et al. 2018, 2019; McAllister et al. 2019; Wehi et al. 2019). While excellent examples of collaborative research are becoming more common (Clapcott et al. 2018; McAllister et al. 2019), globally and nationally many ecologists and conservation biologists continue to operate entirely independently of IK and fail to recognise the global importance of Indigenous lands for conservation (Garnett et al. 2018). For instance, Norton et al.’s (2018) paper on restoration of native biodiversity in Aotearoa only mentioned Māori as a relevant community group, failing to acknowledge the role Māori should play in restoration (Ruru 2004). 

In this review and synthesis, we explore kaitiakitanga, a key Māori concept informed by IK and often linked with conservation, and aim to give Western-trained scientists (acknowledging that Western science also marginalises Eastern cultures; Memmi 2019) and practitioners a better understanding of what kaitiakitanga is beyond (mis) interpretations of “guardianship” or “stewardship”. We also explore some synergies and dichotomies between kaitiakitanga and conservation and highlight some recent examples of co-developed research and monitoring projects. While we specifically discuss Māori worldviews and their relevance to Aotearoa New Zealand in this paper, we believe scientists across the world would benefit from being aware of these concepts because of the similarities and connectedness of many IKs. In addition, indigenising conservation policy is essential globally because colonial conservation ideologies perpetuate injustices to Indigenous human rights to the detriment of human and environmental well-being (Domínguez & Luoma 2020). 

In our broad definition of conservation, we include threatened species recovery, protection of endangered ecosystems, and sustainable resource management. While these three areas are traditionally seen as siloed areas of work, each is clearly tightly interwoven and using a holistic and inclusive understanding of these concepts (consistent with te ao Māori), is essential for effective progress in all three fields. 

Acknowledging and elevating mātauranga is important in Aotearoa New Zealand in order to honour Te Tiriti o Waitangi and the Wai 262 claim (Geismar 2013; Houghton 2021; Potter & Māngai 2022). Te Tiriti o Waitangi is New Zealand’s founding document: an agreement in both Māori and English languages, made between rangatira, Māori chiefs, and the British Crown. The chiefs signed the Māori language version and significant differences in the intent and meaning of key terms between the Māori and English versions created challenges from the outset, followed by deliberate breaches by successive governments through following decades (Charters & Whare 2017; Mutu 2018; Mutu 2019). Furthermore, the rule of contra proferentem which translates as “interpretation against the draughtsman” and was in use in 1840 (and continues in the present-day) is a contractual interpretation that views that, where a term, promise, or agreement is ambiguous, the meaning that is prioritised is the one that works against the interests of the party (the British Crown) who provided the ambiguous wording to begin with. Therefore, the correct version is Te Tiriti o Waitangi, the reo Māori version (Kwan-Parsons 2021). The Waitangi Tribunal, established in 1975, is a standing commission of inquiry that makes recommendations on claims brought by Māori relating to legislation, policies, actions, or omissions of the Crown that breach the conditions made in Te Tiriti o Waitangi. Settlement of Treaty breaches with a particular iwi (tribe) includes a Crown apology and the transfer of cash and assets to a Post-Settlement Governance Entity. Ataria et al. (2018) explain how the Treaty of Waitangi—English language version—specifically covers lands, estates, forests, fisheries, and other properties and the Wai 262 claim covers Indigenous culture, flora, and fauna consistent with Te Tiriti o Waitangi, the Māori language version. The Treaty settlement era has seen a resurgence and reconnection between the environment and people, which has resulted in cultural concepts, including kaitiakitanga, being incorporated in policy (Resource Management Act 1991) and research (Kawharu 2000; Henwood & Henwood 2011). Furthermore, kaitiakitanga is increasingly being incorporated as a key part of some national funding schemes (National Science Challenges; Sustainable Seas, Our Land and Water) and also in wider scientific discourse (Hikuroa et al. 2011; Dick et al. 2012; McGinnis & Collins 2013). The proliferation of iwi environmental management plans (e.g. Hauraki Māori Trust Board 2012; Mahaanui Kurataiao Ltd 2013; Te Ātiawa ki Whakarongotai Charitable Trust 2019) has also highlighted the importance of kaitiakitanga. 

The development, adoption, and implementation of policy frameworks like Vision Mātauranga (MoRST 2005) have incentivised and resulted in increased scientist-initiated engagement with Māori, and in some cases, Māori initiated engagement with scientists. Well-intentioned scientists and practitioners are seeking to incorporate mātauranga, but in our collective experience, a general lack of understanding of kaitiakitanga is thwarting their efforts and runs the risk of cultural appropriation. Here, we highlight the similarities and differences between kaitiakitanga and conservation, and urge non-Māori scientists and practitioners, even if they are working in genuine partnership mana whenua, to refrain from the “we’re all kaitiaki now” sentiment, as witnessed by all three authors on many occasions. Ataria et al. (2018) clearly articulate the risks of poor-quality engagement with IK and describe ways forward for mātauranga to enrich contemporary scientific thinking and, globally, Latulippe and Klenk (2020) advocate for Indigenous research leadership to combat this issue. 

We have collectively experienced kaitiakitanga becoming a buzzword in Aotearoa New Zealand’s scientific and regulatory community, frequently used by environmental managers and science organisations in Aotearoa New Zealand divorced from its cultural context. Despite the widespread adoption and use of the term kaitiakitanga by these organisations and practitioners, a deep and true understanding of its significance and meaning is usually lacking. This has resulted in the widespread belief that kaitiakitanga equates with conservation guardianship, and we support the argument put forward by others (Kawharu 2000) that this is an oversimplification of a rich and complex concept and set of practices, from a different worldview. Roberts et al. (1995) suggests that in order to fully understand a cultural concept (and to prevent the misuse of superficially acquired knowledge), such as kaitiakitanga, one must first serve an apprenticeship. In this particular case, it means kaitiakitanga must be understood within its cultural context, rather than severed from values and related concepts, which ground it within te ao Māori. Similarly, Wehi et al. (2020) describe the philosophical responsibilities of working with mātauranga. Here, we aim to guide conservation scientists and practitioners in understanding kaitiakitanga so that they can meaningfully engage through an enhanced understanding of the Māori worldview. Despite kaitiakitanga not being equivalent with conservation, its widespread use either interchangeably and/or as a proxy for conservation has prompted this article.

Fakes and Indigenous Cultural Expression

The Productivity Commission's Draft Report on Aboriginal and Torres Strait Islander visual arts and crafts features the following key points 

Aboriginal and Torres Strait Islander people have been creating visual arts and crafts for tens of thousands of years. This practice has grown into a significant industry, generating income for artists and art workers, creating economic opportunities for communities, and helping to maintain, strengthen and share Aboriginal and Torres Strait Islander cultures. 

Total sales of Aboriginal and Torres Strait Islander visual arts and crafts reached about $250 million in 2019–20 — this includes $30–47 million in artwork sales through art centres and at least $83 million in sales of merchandise and consumer products (mostly souvenirs) bearing Aboriginal and Torres Strait Islander art and designs. While a small number of artists command high prices, the average income for the 5800–7700 artists who sold art through an art centre in 2019 20 was just over $2700. For independent artists, average income was about $6000. 

Inauthentic arts and crafts — predominantly Indigenous style consumer products not created by Aboriginal and Torres Strait Islander people — are a pervasive and longstanding problem. They disrespect and misrepresent culture and, by misleading consumers and denting confidence in the market, they deprive Aboriginal and Torres Strait Islander artists of income. Inauthentic products accounted for well over half of spending on Aboriginal and Torres Strait Islander souvenirs in 2019 20. 

Mandatory labelling of inauthentic products would raise consumer awareness and help them distinguish between authentic and inauthentic products, impose a negligible compliance burden on Aboriginal and Torres Strait Islander artists (and their commercial partners), and involve modest establishment and administration costs. 

Some visual arts and crafts make use of Indigenous Cultural and Intellectual Property (ICIP), such as sacred symbols, without the authorisation of traditional custodians. This undermines customary laws and limits the economic benefits flowing back to Aboriginal and Torres Strait Islander people. Legal recognition and protection of ICIP is patchy, with very few limits on whether, how and by whom ICIP is used in visual arts and crafts. 

A new law that strengthens protection for aspects of ICIP used in visual arts and crafts would formally recognise the interests of Aboriginal and Torres Strait Islander communities in their cultural assets, promote respectful collaborations and allow for legal action where protected cultural assets are used in visual arts and crafts without the authorisation of traditional owners. 

Art centres assist thousands of established and emerging artists to practise their arts and crafts and engage in the marketplace; they fulfil important cultural and social roles. Other organisations provide vital services to artists — including addressing instances of unethical conduct from other market participants. Improving funding and the effectiveness of support services, as well as strengthening the Aboriginal and Torres Strait Islander arts sector workforce, will be critical for future growth. An independent evaluation of Australian Government funding to the sector — undertaken in partnership with Aboriginal and Torres Strait Islander people — is needed to inform future funding needs, objectives and strategic priorities.

The Commission's  draft findings and recommendations  are -

Aboriginal and Torres Strait Islander arts and crafts are a cornerstone of culture 

Draft Finding 2.1 Aboriginal and Torres Strait Islander arts and crafts generate broad cultural and economic benefits  

isual arts and crafts have been central to the practice and preservation of Aboriginal and Torres Strait Islander cultures for tens of thousands of years. Arts and crafts — as expressions of Aboriginal and Torres Strait Islander people’s connection to culture, Country and kin — are fundamental to the wellbeing of Aboriginal and Torres Strait Islander people, and bring wider benefits for all Australians. Aboriginal and Torres Strait Islander visual arts and crafts are foundational to Australia’s national identity. The visual arts and crafts sector generates income for artists and economic opportunities for communities, and is a major source of direct employment and income in many remote areas. It also supports complementary industries such as tourism. Visual arts and crafts markets are substantial, diverse and growing 

Draft Finding 3.1 The total value of annual spending on Aboriginal and Torres Strait Islander visual arts and crafts — including artworks and consumer products — is about $250 million 

In 2019 20, the total value of spending on (authentic and inauthentic) Aboriginal and Torres Strait Islander visual arts and crafts was about $250 million. This includes sales of original art made through art centres, commercial galleries, auction houses and other retailers, as well as consumer products such as souvenirs and homewares. Some of the spending on these consumer products was on inauthentic arts and crafts — about 55–61% of spending on souvenirs was on inauthentic Indigenous style products, purchased predominantly by international visitors.   

Draft Finding 3.2 Visual arts and crafts sales contribute to the economic wellbeing of Aboriginal and Torres Strait Islander artists 

For many Aboriginal and Torres Strait Islander artists across Australia, selling their arts and crafts contributes to their economic wellbeing. In remote areas, arts and crafts activities provide economic opportunities for artists, through artwork sales and the teaching of art and culture. Artists in regional and metropolitan areas also benefit economically from the sale of their arts and crafts, although they are more likely to have access to a wider range of income sources. 

Draft Finding 3.3 Art centres support most of the production and sales of art in remote areas The Commission estimates that sales of artworks produced by art centre artists totalled between $30–47 million in the 2019 20 financial year, from about 5800–7700 artists who sold at least one artwork. Total sales by art centres have more than doubled since 2012, but growth has been concentrated mostly in Northern Territory art centres. The scale of production at art centres varies substantially, with the largest scale operations taking place in the Western Desert, Arnhem Land and APY Lands art regions. Art centres rely on several methods to sell artworks, but have shifted towards sales through consignment agreements with intermediaries such as commercial galleries. Art centres have also moved towards selling art direct to consumers, either through their own galleries or through art fairs. 

Draft Finding 3.4 Artworks by independent artists have a material presence in Aboriginal and Torres Strait Islander arts and crafts markets Independent artists have a material presence in markets for Aboriginal and Torres Strait Islander visual arts and crafts — the Commission’s preliminary estimates based on limited data show that about 1700 independent artists generate sales of about $10 million a year. About half of art dealer businesses sell the works of independent artists. In addition, independent artists produce commissioned artworks and sell direct to consumers through art fairs, online marketplaces and social media. 

Draft Finding 3.5 The total value of Aboriginal and Torres Strait Islander artworks sold on the secondary market remains below its peak 

Following strong growth up to 2008, resales of Aboriginal and Torres Strait Islander artworks collapsed following the Global Financial Crisis (GFC). The total value of resales has since remained below the pre GFC peak, with average prices of Aboriginal and Torres Strait Islander artworks sold by public auction houses lower than resales of artworks by non Indigenous artists. 

Inauthentic visual arts and crafts are pervasive and cause significant cultural harm and economic costs 

Draft Finding 4.1 Visual arts and crafts are considered authentic Aboriginal and Torres Strait Islander arts and crafts if they are authored by an Aboriginal and Torres Strait Islander person, or produced under a licensing agreement 

For the purpose of this study, a product or artwork is considered authentic Aboriginal and Torres Strait Islander visual art or craft if it is: • an original piece authored (or co authored) by an Aboriginal and Torres Strait Islander person, or • produced under a licensing agreement with the Aboriginal and Torres Strait Islander artist(s). Aboriginal and Torres Strait Islander visual arts and crafts that do not meet these criteria, including those that infringe the copyright of an Aboriginal and Torres Strait Islander artist’s work, or are Indigenous style arts and crafts made by non Indigenous people without licensing agreements, are considered inauthentic. 

Draft Finding 4.2 Inauthentic Aboriginal and Torres Strait Islander arts and crafts are rife in the consumer product, digital and print on demand merchandise markets 

Inauthentic products dominate the consumer product (mostly wholesale souvenirs), digital, and print on demand merchandise markets. Copyright infringement is also common in the print on demand merchandise market. In the consumer product (wholesale souvenirs) market: • approximately two thirds to three quarters of product offerings are inauthentic, though the prevalence of inauthenticity varies by product category • on average, authentic products are nearly twice as expensive as an inauthentic product of the same type • most consumer products are manufactured overseas regardless of their authenticity. Based on random sampling, inauthentic products are commonplace in the print on demand merchandise market (over 60% of Aboriginal and Torres Strait Islander merchandise was found to be inauthentic) and even more prevalent in the digital art marketplace (over 80% of digital stock images depicting Aboriginal and Torres Strait Islander designs, styles and motifs were inauthentic).   

Draft Finding 4.3 The negative effects of inauthentic visual arts and crafts outweigh any benefits 

The existence and prevalence of inauthentic arts and crafts in the market has wide ranging and predominantly detrimental effects on both Aboriginal and Torres Strait Islander people and the broader Australian community. These include personal and cultural harms (such as emotional distress, loss of identity and self) and economic harms (such as a loss of income for Aboriginal and Torres Strait Islander artists, and consumer hesitancy in purchasing Aboriginal and Torres Strait Islander arts and crafts). Inauthentic products disrespect and misrepresent Aboriginal and Torres Strait Islander cultures, and have the potential to mislead consumers. 

Draft Finding 4.4 Consumers’ lack of awareness and difficulties in identifying authentic products, as well as the legal landscape are the main enablers of inauthentic arts and crafts 

Inauthentic Indigenous style visual arts and crafts continue to be prevalent in the market due to: • limited legal barriers to the creation or sale of inauthentic arts and crafts under Australian law (in particular, the Copyright Act and the Australian Consumer Law) • a lack of awareness and understanding of inauthenticity and its harms by producers and purchasers of inauthentic arts and crafts • difficulties identifying and distinguishing inauthentic products from authentic ones. 

A mandatory labelling scheme to reduce trade in inauthentic products 

Draft Finding 5.1 Some approaches to distinguish between authentic and inauthentic Aboriginal and Torres Strait Islander art and craft products are already in place 

Some approaches are already in place to help consumers distinguish between authentic and inauthentic Aboriginal and Torres Strait Islander artworks and other products. These include certificates of authenticity provided by art dealers (such as those produced in accordance with the Indigenous Art Code), as well as other branding and marketing initiatives used by artists and dealers to provide information and assurances to consumers. However, only limited information is provided for some products, particularly in the lower end of the market, including souvenirs and digital products.   

Draft Finding 5.2 Voluntary industry-wide labelling schemes for authentic products are unlikely to be effective in materially reducing inauthentic arts and crafts 

Notwithstanding the possible marketing benefits to participants themselves, industry wide voluntary labelling schemes (such as certification trade marks) are unlikely to reduce the prevalence and harms of inauthentic products substantially. To address information gaps in the market and allow consumers to distinguish between authentic and inauthentic products, voluntary labelling schemes require high levels of participation. Yet the risk of limited uptake by Aboriginal and Torres Strait Islander artists, coupled with the costs of establishing and administering an industry wide voluntary labelling scheme, make the net benefits uncertain. 

Draft Finding 5.3 Education and awareness-raising measures should complement other initiatives 

Education and awareness raising measures can inform consumers and businesses about the existence and harms of inauthentic products. However, on their own their effectiveness in countering inauthentic products is limited, especially where the information used to promote and label products is confusing or inaccurate. Education measures are more effective where they accompany measures that help consumers distinguish between authentic and inauthentic products. 

Draft Finding 5.4 Banning inauthentic products is unlikely to be the most cost effective response 

A ban on the sale of inauthentic products could be an effective way to mitigate the economic and cultural harms they cause and prevent consumers from unwittingly purchasing inauthentic products. However, there are substantial risks in imposing a ban. A broad ban would increase the risk of costly errors (for example, authentic products incorrectly excluded from sale). A narrow ban would not resolve the harms caused by many inauthentic products. A ban would also limit choice in the market, and consumers would arguably be better served by being able to make more fully‑informed choices. Therefore, the Commission considers that a ban is unlikely to be the most appropriate response. 

Draft Finding 5.5 Labelling inauthentic products is a targeted and cost effective way of informing consumers and improving the functioning of the market for Aboriginal and Torres Strait Islander visual arts and crafts 

A mandatory labelling scheme for inauthentic products could be a targeted and cost effective option for addressing the issue of inauthentic Indigenous style products. While it would not eliminate inauthentic products, it would improve the operation of the market, by helping consumers to distinguish between authentic and inauthentic products. A well designed labelling scheme focused on inauthentic products would only impose minimal compliance burdens on Aboriginal and Torres Strait Islander artists. 

Draft Recommendation 5.1 A mandatory labelling scheme for inauthentic products should be developed 

The Australian Government should develop a mandatory information standard to require the labelling of inauthentic Indigenous style products to indicate to consumers that they are not created by or under licence from an Aboriginal and Torres Strait Islander person. In developing the standard, the Australian Government should engage effectively with Aboriginal and Torres Strait Islander people. 

Information request 5.1 How might a mandatory labelling scheme for inauthentic products operate in practice and what should be considered further in its design? • Is the suggested approach to product coverage workable? Are there ways to provide greater certainty about coverage without unduly narrowing its scope? • Are the authenticity criteria for the scheme appropriate? Do they pose any unintended consequences? If so, how could these be addressed? • Are there any other considerations about the design and implementation of the standard? 

Indigenous Cultural and Intellectual Property is used in arts and crafts without permission and inappropriately 

Draft Finding 6.1 Indigenous Cultural and Intellectual Property has intrinsic value 

Indigenous Cultural and Intellectual Property (ICIP) refers to all dimensions of Aboriginal and Torres Strait Islander heritage and cultures, from languages and performances to traditional scientific and ecological knowledge. It has intrinsic value to Aboriginal and Torres Strait Islander people and is a unique national asset that forms an important part of Australia’s identity. Expressions of ICIP in the form of visual arts and crafts are often more than creative outputs. They can play a role in transmitting and thereby preserving laws, history, culture and customs of Aboriginal and Torres Strait Islander people.   

Draft Finding 6.2 Existing laws do not directly protect Indigenous Cultural and Intellectual Property in Aboriginal and Torres Strait Islander visual arts and crafts 

Current laws provide some protection of Indigenous Cultural and Intellectual Property (ICIP) in visual arts and crafts. But these protections are piecemeal and do not enable Aboriginal and Torres Strait Islander people and communities to directly control whether and how their ICIP is used in visual arts and crafts. This means that Aboriginal and Torres Strait Islander ICIP is often used in inappropriate contexts without the consent of the relevant Aboriginal and Torres Strait Islander people and communities. There is a strong case for examining how legal protections for ICIP in visual arts and crafts could be strengthened to reduce misappropriation and help to protect and preserve ICIP in visual arts and crafts. 

Draft Finding 6.3 Dedicated legal protections may assist in addressing misappropriation of Indigenous Cultural and Intellectual Property in visual arts and crafts 

Minor amendments to existing laws could improve protection of Indigenous Cultural and Intellectual Property (ICIP) in visual arts and crafts, but gaps would remain. Larger scale amendments are likely to be incompatible with the frameworks or objectives of existing legislation. Dedicated legislation has the potential to provide stronger recognition and more fit for purpose protection for ICIP used in visual arts and crafts. Legislation directly focused on ICIP in visual arts and crafts would provide a framework for negotiation and presents an opportunity to do so in a way that promotes a fair allocation of benefits. 

Recognising cultural rights to protect the ICIP in visual arts and crafts 

Draft Recommendation 7.2 New cultural rights legislation should be introduced to recognise and protect cultural assets in relation to visual arts and crafts 

To address the issue of Indigenous Cultural and Intellectual Property being used in visual arts and crafts without authorisation from traditional owners, the Australian Government should introduce new legislation that formally recognises the interests of Aboriginal and Torres Strait Islander communities in their traditional cultural assets. To achieve this, the legislation should create a new cause of action that specifies that a traditional owner’s rights are infringed if a person uses a cultural asset to create a cultural expression, such as a piece of art or craft, without the authorisation of a traditional owner, unless an exception applies. 

Draft Finding 7.2 A cultural rights regime must balance the interests of traditional owners and those seeking access to cultural assets 

The recognition of cultural rights needs to strike the right balance between the interests of traditional owners and the interests of those seeking to access and use cultural assets. This will help ensure that the preservation and maintenance of culture does not come at the cost of preventing traditions and culture from evolving or adapting over time. To achieve this, checks and balances should be built into the legislative regime — including by specifying criteria for: what is protected under the legislation; who can take action to assert cultural rights; and what uses of cultural assets require authorisation. 

Information request 7.1 What should be protected by the new cultural rights legislation? • What is the best way to define what should be in scope for protection? • Should there be limits on protection, such as conditions on when protections apply or threshold criteria for what is protected? If so, what should they be? 

Information request 7.2 How should the legislation deal with the issue of standing to bring a cultural rights action? • What criteria should determine whether a claimant has standing? • What is the best way to recognise communities or groups as having standing? • What are the merits, drawbacks and challenges of giving a government regulator the power to bring cases in relation to cultural misappropriation? 

Information request 7.3 What types of conduct should be considered an infringement of a traditional owner’s cultural rights? • What types of uses of cultural assets should be recognised as having the potential to be infringing? For example, should there be a requirement for the use to be in material form or a substantial use? • How should a court determine whether a user has been granted authorisation to use a cultural asset in a certain way? • Should there be exceptions when cultural assets are used for certain purposes? If so, what should those exceptions be? What should the legislation say about remedies for infringements of cultural rights? • What suite of remedies are needed to achieve fair and just outcomes? • What should the new cultural rights legislation say about how remedies are awarded? 

Information request 7.4 What institutional arrangements are needed to support a new cultural rights regime? • What types of dispute resolution options should be available? What is needed to ensure that dispute resolution processes are responsive to the needs of Aboriginal and Torres Strait Islander people and communities? • Is there a case for a statutory Cultural Authority? What would its remit, functions and powers be? 

Draft Finding 7.1 There are advantages to taking a multi pronged approach to protecting Indigenous Cultural and Intellectual Property 

Given its multi faceted nature, it is not clear that stronger legal protection for all aspects of Indigenous Cultural and Intellectual Property (ICIP) could be pursued through a single regulatory measure. A multi pronged approach to protecting ICIP would enable regulatory responses to be tailored to specific types of ICIP, resulting in more nuanced and fit for purpose protections. It would also take the pressure off any single measure to solve all issues relating to ICIP and give implementation bodies the licence to focus on specific policy issues. 

Draft Recommendation 7.1 An Indigenous Cultural and Intellectual Property Strategy is needed to coordinate regulatory measures 

The Australian Government should develop and publish an Indigenous Cultural and Intellectual Property (ICIP) strategy that sets out how policy and regulatory measures will address different aspects of ICIP. The development of the strategy should be led by the Minister for Indigenous Australians, in partnership with state and territory governments and Aboriginal and Torres Strait Islander people.   

Some artists encounter unfair and unethical conduct     

Draft Finding 8.1 Unethical conduct towards Aboriginal and Torres Strait Islander artists still occurs  

Longstanding and serious allegations continue to be made of exploitation of Aboriginal and Torres Strait Islander artists in some remote areas of Australia. There are also examples across the country of unfair contract terms, copyright infringement and plagiarism, which affect the rights, wellbeing and economic returns to Aboriginal and Torres Strait Islander artists and their communities. 

Draft Finding 8.2 Enforcement of the Indigenous Art Code is constrained by resourcing 

The Indigenous Art Code is one of the key mechanisms used to mediate interactions between artists and the market. However, the company enforcing the code is under resourced and overstretched. 

Draft Finding 8.3 Artists face difficulties accessing justice and other support services 

Key legal protections, including copyright and the prohibition on unconscionable conduct, can be difficult for artists to access. There are also gaps in support services for independent artists, including those working outside of areas served by art centres and regional peak organisations. 

There is scope to improve government support to the sector 

Draft Finding 9.1 The big picture of government funding is hard to piece together 

Aboriginal and Torres Strait Islander artists and art organisations receive funding from a multitude of sources, including targeted and mainstream arts programs and various non arts portfolios across all levels of government, as well as from philanthropy and corporate sponsorship. Outside of the few targeted programs, data on funding provided to Aboriginal and Torres Strait Islander visual arts and crafts is not reported. As a result, it is hard to determine the overall amount of funding available to the sector, or assess how well different funding streams are addressing the needs of the sector.   

Draft Finding 9.2 The National Indigenous Visual Arts Action Plan provides a time-limited funding increase 

The Aboriginal and Torres Strait Islander visual arts and crafts sector has seen recent injections of funds both directly through the Australian Government’s National Indigenous Visual Arts Action Plan, and indirectly through commitments to establish Aboriginal and Torres Strait Islander art and cultural centres. The National Indigenous Visual Arts Action Plan provides $25 million of additional funding to the sector over five years, including for infrastructure upgrades and building digital capacity. The governments of the Northern Territory, South Australia and Western Australia are funding art and cultural centres in their respective jurisdictions while New South Wales is investigating similar opportunities. The Australian Government has also committed to establishing a National Aboriginal and Torres Strait Islander cultural complex in Canberra, which will include art and artefact collections. 

Draft Finding 9.3 Primary funding sources from the Australian Government have plateaued in real terms in recent years The Australian Government provides targeted annual funding of about $24.5 million to the Aboriginal and Torres Strait Islander visual arts and crafts sector through its key art funding programs: the Indigenous Visual Arts Industry Support (IVAIS) and the Australia Council’s Aboriginal and Torres Strait Islander Arts programs. After increasing for many years, since 2015–16, total IVAIS funding has declined in real terms by 5%. Average funding for art centres — the main recipients of government support — has fallen by 6.3% as the number of art centres has increased while funding under the program has remained fixed. Since 2016 17, funding to the Aboriginal and Torres Strait Islander Arts Program under the Australia Council has fallen in real terms by 5%. The recent funding commitments through the National Indigenous Visual Arts Action Plan will assist a number of art centres over a five year period, but there has been no change to the ongoing operational funding provided by IVAIS.   

Draft Finding 9.4 Many roles that art centres fulfil are out of scope for arts funding programs 

The Australian Government’s flagship funding program for the sector, the Indigenous Visual Arts Industry Support (IVAIS) program, focuses on art production and operational costs. Aboriginal and Torres Strait Islander community-controlled art organisations fulfil a range of important cultural and social roles within their communities, which are not funded under IVAIS. This increases the administrative burden on art organisations (as they seek to secure funding from other sources) and limits their ability to undertake activities highly valued by their communities. Securing funding to meet the infrastructure needs of art centres has been a longstanding issue. While some funding has been made available for this purpose under the National Indigenous Visual Arts Action Plan, this commitment is only for five years at this stage. 

Building the Aboriginal and Torres Strait Islander arts workforce requires a strategic approach 

Draft Finding 9.5 A strategic approach to building the Aboriginal and Torres Strait Islander arts workforce is lacking 

Art centres and other art organisations continue to face significant difficulty recruiting and retaining skilled art workers, especially in remote areas. There is no strategic approach at the national level to build the pipeline of Aboriginal and Torres Strait Islander visual arts and crafts workers — and leaders — in remote, regional and urban areas. The Aboriginal and Torres Strait Islander arts sector was not included as an area of focus under the National Roadmap for Indigenous Skills, Jobs and Wealth Creation, and there is a risk that strategic opportunities will be missed as a result. With a number of Aboriginal and Torres Strait Islander art and cultural institutions being built across the country, investment in career pathways and traineeships is required to ensure Aboriginal and Torres Strait Islander people lead — and are employed by — these institutions, and to meet broader policy goals as agreed by governments on Aboriginal and Torres Strait Islander employment, self determination, leadership and empowerment. 

Draft Finding 9.6 Appropriate training and professional development opportunities appear limited 

Governments provide funding for professional development and training for workers in the visual arts and crafts sector. However, only a limited number of targeted training, professional development and support programs are available to existing and aspiring Aboriginal and Torres Strait Islander visual arts and crafts workers and artists. In particular, it is not clear how adequate or accessible professional development opportunities are for independent artists. 

Information request 9.1 • What are the barriers facing Aboriginal and Torres Strait Islander people wishing to develop the skills required for leadership and senior management positions in the visual arts sector? For example, is funding support to study or gain accreditation while away from home a barrier? • Is there merit in establishing an accreditation that formally recognises the practices, skills and knowledges learnt from Elders on Country? • Are the professional development programs offered to arts workers (and independent artists) by art centres, industry service organisations and regional hubs delivering the skills required by the industry? • Are these programs over subscribed? If so by how much? If not, how can art workers be supported to attend? 

Strengthening the sector 

Draft Recommendation 10.3 Australian Government funding should be evaluated to inform future arrangements 

The Australian Government should commission an independent evaluation of the effectiveness of Australian Government expenditure directed to the Aboriginal and Torres Strait Islander visual arts and crafts sector. The scope of the review should include the Indigenous Visual Arts Industry Support (IVAIS) program, the National Indigenous Visual Arts (NIVA) Action Plan and relevant Australia Council programs. This evaluation should be undertaken in partnership with Aboriginal and Torres Strait Islander representatives of the sector, in accordance with the principles of the Productivity Commission’s Indigenous Evaluation Strategy, and be completed by December 2025. The evaluation should consider: • how effectively funding has met existing objectives, and whether these objectives are the right ones • whether and what additional support is required to help meet sector priorities (for example, whether a sector wide Aboriginal and Torres Strait Islander workforce strategy is required) • what aspects of the NIVA Action Plan, such as support for independent artists, should be maintained as part of ongoing government funding to the sector.   

Draft Recommendation 10.4 Aboriginal and Torres Strait Islander people should be part of shared decision-making in setting objectives for government funding for visual arts and crafts 

Under the National Agreement on Closing the Gap, governments committed to build and strengthen the structures that empower Aboriginal and Torres Strait Islander people to share decision making authority with governments. The current approach to determining funding objectives in the Aboriginal and Torres Strait Islander visual arts and crafts sector is not characterised by shared decision making between governments and Aboriginal and Torres Strait Islander people. The Australian Government (led by the Australian Government’s Office for the Arts) should establish a formal shared decision making partnership with Aboriginal and Torres Strait Islander artists and art organisations to help identify funding priorities and strategic initiatives to support growth across the sector. 

Information request 10.1 • What is the best approach to bring together the range of perspectives of the sector to establish a formal shared decision making partnership with government? • Does the sector support the development of a national peak organisation to advocate on behalf of the sector? • What would be required to develop a national peak organisation? How should governments support this process? 

Draft Finding 10.1 The case for an ACCC enforced mandatory or voluntary Indigenous Art Code is not strong Although there is some indication of ongoing unethical conduct in some remote areas of Australia, there is inadequate evidence that this conduct is sufficiently widespread to justify an ACCC enforced voluntary or mandatory code of conduct for the Aboriginal and Torres Strait Islander arts and crafts industry. An industry wide code risks being a blunt and costly tool that would not necessarily address existing shortcomings.   

Draft Recommendation 10.1 The Indigenous Art Code can be strengthened through a joint commitment of government and industry The Australian Government, in partnership with state and territory governments, should modestly increase funding to Indigenous Art Code Limited to support key priorities, including: • an enhanced dispute resolution process, with a referral pathway to independent review of decisions and public reporting of deidentified dispute outcomes • more detailed performance indicators to inform evaluation of the Code’s effectiveness, alongside public reporting of progress. Additional funding should be subject to ongoing monitoring and evaluation of the Code’s effectiveness. Commensurately higher membership fees from dealer members should also be levied to co fund these improvements. 

Draft Recommendation 10.2 Artists should be aware of and able to access legal support services The Australian Government should ensure that legal support services for artists are accessible. Referral pathways should be comprehensive and accessible to independent artists, and promoted such that artists are aware of them. Through its review of the Indigenous Art Code Limited, the Australian Government should assess whether it is the best organisation to undertake this role. Depending on the outcome of that review, the Australian Government should provide funding to the responsible organisation to maintain these referral pathways. 

Information request 8.1 • Are there shortcomings in the processes that governments, large corporations and non government organisations use to purchase Aboriginal and Torres Strait Islander art and design services? • What changes could be made to enable artists to better engage with these procurement processes?

Rights and Sacred Domains

'Communities’ Sacred Mountains vs. State-owned Natural Resources – Towards a Rights-based Governance of Cultural and Biological Diversity in China' by Yong Zhou in (2021) 39(4) Nordic Journal of Human Rights 508-529 comments

In the multi-nation society of China, disputes related to the beliefs and customs of indigenous communities in the process of the state’s natural resources management have been increasing because of sports activities, tourism, extractive industries, hydropower and other infrastructure constructions. From a legal pluralism perspective, with a focus on the Tibetan mountain cult in the Kawagebo (Mt. Meili) mountain area, this research argues the existence of two types of governances based on different worldview, beliefs, normative frameworks and management practices: the community spiritual governance (CSG) and the state resources governance (SRG). By analysing the institutional constraints to, and the potentials of recognising the spiritual significance of, sacred mountains and rights of indigenous communities, this research justifies a pathway of turning SRG towards a ‘rights-based governance’ for coordinating these conflicts. 

Zhou argues

 On 4 January 1991, when the joint Japan–China expedition team almost had reached the summit of the untrodden snow-capped peak of Kawagebo (6740 metres) in Southwest China, the entire 17-member team suddenly disappeared under an avalanche. The day before there had been a shocking cultural clash: while the team celebrated successfully reaching the 6400-metre point, thousands of local Tibetans prayed to the Mountain God for the expedition’s failure. In the winter of 1996, the Academic Alpine Club of Kyoto University and their Chinese partner co-organised a second attempt at scaling Kawagebo. This time, hundreds of thousands of local villagers blocked the road entering the area. They complained that a series of harmful accidents had happened after the previous expedition, and the Mountain God would punish them even more severely if the folk rules were violated again. They argued that it was unfair that the central or local authorities had the power to give people permission to climb their holy mountain, because they could not move to another place to avoid the predicted punishment by the Mountain God. Nevertheless, the team insisted on continuing its mission and disregarded the strong resistance of local Tibetan believers. Their expedition also failed due to mysterious weather conditions. 

These frustrated attempts in the 1990s inspired more mountain climbers to take on the summit. Climbers argue that the spirit of their sport decrees that no mountain cannot be trodden by human feet. It is also argued that the Chinese official ideology is atheism, which should not give room to other alternative beliefs, and that these sports activities could also bring more openness and economic development to the local communities. There were reports on several plans to scale the summit.1 Local believers, however, considered such behaviour to be a serious assault on their beliefs and customary law. They believed that the failures of the expeditions and ensuring incidents were the expressions of the god’s anger and punishment of offenders. They were therefore compelled to prevent any further mountain climbing to defend their mental, physical, and social well-being. Proposals by scholars of culture and environmental NGOs reflected on ways to resolve the tensions. In 2000, the Friends of Nature presented a proposal to the Chinese central government for a ban on climbing Kawagebo. The proposal was halfway successful, in that the central authority temporarily agreed to grant no new permissions, but did not expressly forbid climbing the mountain.  

A sacred mountain is one of various kinds of sacred natural sites (SNS), meaning areas of land or water having special spiritual significance to peoples and communities. The increasingly numerous disputes concerning sacred sites in China are not limited to sports activities. Other major threats to local or indigenous communities’ SNS, including forests, rivers and lakes, are extractive industries, hydropower exploitation, infrastructure construction, and tourism. These disputes raise a major legal question: what would be a justified normative framework on sacred mountains in the Chinese context to guide the solution of such conflicts? 

Through a review of related normative frameworks in the fields of human rights, cultural heritage, and natural resources, this article locates the favourable conditions and the challenges of moving towards the viable protection of SNS in various legal sources. On the one hand, it is clear that the People’s Republic of China (PRC) is legally bound by its Constitution to protect the freedoms of religion and belief (FoRB Article 36) and relevant minority rights of cultural autonomy (Article 4), which are consistent with key UN human rights conventions ratified by China, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In addition, ongoing practices of governance of cultural heritage and biodiversity that recognise the spiritual link between sacred mountains or other SNS and local or indigenous communities, exist in China. The state has legal obligations under the UNESCO conventions on cultural/natural heritage (1972), intangible cultural heritage (2003), and the diversity of cultural expression (2005). China has further accepted a legal obligation to acknowledge the key role of traditional knowledge and practices of indigenous and local communities for the conservation and sustainable use of biological diversity under the UN Convention on Biological Diversity (1992). Domestically, the central and local authorities have also adopted relevant laws on intangible cultural heritage (2011) and national parks (2016) for cultural conservation. 

On the other hand, however, it has been observed that domestic constitutional principles malfunction. Certain ideas and the institutionalised legal order of the Communist Party’s governance can contradict these principles in the Chinese ‘party-state’ context. In addition, although China internationally supports the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it denies the existence of indigenous peoples in the country. This official standpoint not only means that the government neglects the relevant rights, but also limits the ability of these peripheral peoples in China to voice their interests and claim the rights of indigenous peoples. 

The existing disputes on sacred mountains in peripheral peoples’ homelands in China suggest a pressing demand for exploring the issues around integrating indigenous peoples’ rights into the country’s domestic law. By assuming that fundamental human rights principles could provide a justified normative framework for bridging the governance gap on natural resources between the orders of folk law and state law in general, this paper narrows down its discussion to the two fundamental principles articulated in the PRC’s Constitution: FoRB and cultural autonomy. Its central question is therefore: what are the constraints, potentials, and possible ways of institutionalising the two constitutional freedoms for conflict resolution on SNS? 

This research adopts the methodology of ‘a descriptive conception of legal pluralism’ in observing and analysing the given conflicts. To use the term ‘legal pluralism’ in this perspective means acknowledging that, as Griffiths describes, law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one another, so that the ‘law’ which is actually effective on the ‘ground floor’ of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism, and the like. 

This article will first explore the sacred mountain conflicts as expressions of two types of governance, one based on folk law and the other on state law, with different postulates. These can be called community spiritual governance (CSG) and state resources governance (SRG). Second, assuming that the two fundamental constitutional principles of FoRB and cultural autonomy could bridge the gap between CSG and SRG, the article explores the existing institutionalised normative order that constrains the functioning of these principles. Third, by observing the potential of recognising the link between sacred mountains or other SNS and indigenous or local communities in the recent practice of cultural heritage and biodiversity governance, this research finds that these normative frameworks and social practices thus produced provide dynamics and possibilities which may break through the above constraints. However, I argue that the key element for closing the gap between the two types of governance is to make a turn towards a ‘rights-based governance’ within SRG. For this purpose, I propose a two-step pathway towards creating a normative framework for such conflict resolution in Chinese state law.

Surfers

'Can Surfers Have Traditional Knowledge Intellectual Property?' by Todd Berry and Charles Lawson in (2021) 8(2) Griffith Journal of Law & Human Dignity comments 

 Various international agreements address traditional knowledge (TK), Indigenous Peoples and local communities. A distinction exists between the traditional knowledge of Indigenous Peoples and the traditional knowledge of local communities. The World Intellectual Property Organisation’s (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is negotiating a text in anticipation of a Diplomatic Conference to agree on binding obligations about TK distinguishing between the TK of Indigenous Peoples and local communities. This article reports on a pilot study assessing the TK of the surfing community of the Gold Coast, Australia in the context of a local community’s TK. Through semi-structured interviews of surfers and non-surfers the following hypotheses were tested: (1) that surfers exist as a local community; and (2) as a local community, surfers have special forms of knowledge and practices particular to their local community that might be characterised as TK. The results of this pilot study show that surfers are a local community and that they do have special forms of knowledge and practices that might be characterised as TK. If this is the intended reach of WIPO’s new form of intellectual property, then this will extend well into the economies of developed countries.

Indigenous Protocols

The Australia Council for the Arts has released a revised version of the Protocols for using First Nations Cultural and Intellectual Property in the Arts. 

The 'snapshot' of the Protocols is - 

Principle 1 - Respect 

The rights of Indigenous people and communities to own, protect, maintain, control and benefit from their cultural heritage should be respected. 

Principle 2 - Self-determination 

Indigenous people have the right to self-determination and to be empowered in decisions that affect their arts and cultural affairs. 

Principle 3 - Communication, consultation and consent 

Indigenous people have the right to be consulted and give their free prior informed consent for the use of their cultural heritage. 

Principle 4 - Interpretation 

Indigenous people have the right to be consulted and give their free prior informed consent for the use of their cultural heritage. 

Principle 5 - Cultural integrity and authenticity 

Indigenous people have the right to be recognised and represented as the primary guardians and interpreters of their cultural heritage. Maintaining the integrity of cultural heritage is vital to the continued practice of culture. 

Principle 6 - Secrecy and confidentiality 

Indigenous people have the right to keep secret and sacred their cultural heritage. Confidentiality concerning aspects of Indigenous peoples’ personal and cultural affairs should also be respected. 

Principle 7 - Attribution 

Indigenous people have the right to be respectfully acknowledged and attributed as the traditional owners and custodians of their cultural heritage. 

Principle 8 - Benefit sharing 

Indigenous people and communities have the right to benefit from their contribution and for the sharing of their cultural heritage, particularly if commercially applied. 

Principle 9 - Continuing cultures 

Indigenous cultures are dynamic and evolving, and the protocols within each group and community will also change. Consultation and free prior informed consent are ongoing processes. 

Principle 10 - Recognition and protection 

Indigenous people have the right to protection of their cultural heritage and intellectual property rights in that cultural heritage. Laws, policies and contracts should be developed and implemented to respect these rights

Biodiscovery and Traditional Knowledge

Noting the Queensland Parliament's Innovation, Tourism Development and Environment Committee report on the Biodiscovery and Other Legislation Amendment Bill 2019 (Qld) passed last month. 

The reports states 

 The primary objective of the Bill is to amend the Biodiscovery Act 2004 (the Act) to ensure that it is contemporary, effective and equitable, by reflecting international standards which include providing an obligation for the use of traditional knowledge. This will help Queensland’s biodiscovery industry to remain globally competitive and ensure that the benefits of biodiscovery are shared equitably throughout Queensland, including with First Nations peoples. 

Specifically, the Bill:

1. recognises and protects traditional knowledge used for biodiscovery by providing for consent to be provided, and benefit sharing on mutually agreed terms, to be negotiated with traditional knowledge custodians prior to commencing biodiscovery activities, where traditional knowledge is to be used in the biodiscovery 

2. simplifies approvals under the Act by removing the requirement for a biodiscovery entity to apply for and obtain an approved biodiscovery plan, on the basis that information contained in the biodiscovery plan is provided in the application for a collection authority, or in the negotiation of a benefit sharing agreement with the State 

3. clarifies the relationship between the Act and relevant international protocols by: 

a.recognising that 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 (Nagoya Protocol) (adopted in 2010 and signed by Australia in 2012) is the relevant international agreement under the Convention on Biological Diversity (CBD) to which the Act gives effect, to the extent it concerns native biological material and traditional knowledge in Queensland 

b. clarifying that plants listed under Annex 1 of the CBD and subject to the Food and Agriculture Organisation of the United Nations International Treaty on Plant and Genetic Resources for Food and Agriculture (FAO Treaty) are exempt from the Act under certain circumstances.

... Stakeholders and the Government agreed that the Act should be amended to recognise and protect traditional knowledge used for biodiscovery. Members of the Traditional Knowledge Stakeholder Roundtable agreed that the inclusion of traditional knowledge in legislation for biodiscovery is essential to First Nations peoples, to enable them to decide how their traditional knowledge is to be used, to maintain a connection to country, and to be able to negotiate a fair and equitable share of the benefits arising from the use of their traditional knowledge. 

Stakeholders agreed that closer alignment with the Nagoya Protocol will benefit Queensland long-term, and reflects a general trend toward improved research practices by biodiscovery entities. Biodiscovery entities agreed that closer alignment with the Nagoya Protocol is essential to enable international collaboration and commercialisation, and supported amendments that simplify approval processes such as the removal of a requirement for a biodiscovery entity to apply for and obtain an approved biodiscovery plan. Biodiscovery entities consistently cite a desire to avoid over-regulation in order to encourage industry development and maintain academic freedoms. 

Biodiscovery entities – most notably QAAFI – strongly supported the provision for an exemption from the Act for plant species listed under the CBD and subject to the FAO Treaty. QAAFI consulted extensively with the department to develop a solution.

In discussing issues raised during the committee’s examination of the Bill the report states 

Background 

What is biodiscovery Biodiscovery is the take and use of minimal quantities of native biological material from state land or waters for molecular, biochemical or genetic analysis for commercial purposes, such as pharmaceuticals, foods and bioplastics. 

Policy framework 

In Queensland, biodiscovery is regulated under the Act. The Act establishes an access and benefit sharing framework for use of the State’s native biological material and was established in part to meet the requirements of Article 15 of the CBD, which deals with access to genetic resources.   

The Act aims to ensure biodiscovery activities in Queensland are undertaken in a sustainable manner, while returning a fair and equitable benefit to the community. This is achieved through approvals and agreements administered by department, including: • a collection authority • a biodiscovery plan • a benefit sharing agreement.   

The biodiscovery industry has evolved since the introduction of the Act and the international regulatory context for access and benefit sharing has changed, particularly with the introduction of a supplementary agreement to the CBD, the Nagoya Protocol in 2014. The Nagoya Protocol provides a framework for the fair and equitable sharing of benefits arising from the utilisation of genetic resources and including the use of traditional knowledge associated with genetic resources. Access and benefit sharing in accordance with the Nagoya Protocol acknowledges and involves the contributions of Indigenous peoples and local communities. 

Australia signed the Nagoya Protocol in 2012, and while Australia has yet to ratify, over 120 countries have, including many of Queensland’s trading and scientific partners. These partners often require demonstrated compliance with the Nagoya Protocol before negotiating research or commercialisation partnerships.   

The Act cannot align with the Nagoya Protocol without providing for First Nations peoples to consent to and negotiate benefit sharing for the use of their traditional knowledge. Therefore, biodiscovery entities in Queensland are unable to demonstrate Nagoya level compliance and are at risk of being denied international collaborations and access to the global market. Furthermore, without formal recognition and legal protection, First Nations peoples can do little to prevent further use of traditional knowledge or resources without consent. 

The department advised that, as at January 2020, there are nine benefit-sharing agreements signed in Queensland and a further eight under negotiation. 

The department provided some examples to the committee of potential biodiscovery projects in Queensland:

We have examples in areas in which biodiscovery would be applied. An example of a medical discovery would be the venom collected from dangerous marine species, like stonefish and box jellyfish, in the Great Barrier Reef which are used to develop life-saving venins, for example. In industry we have nanofibres from spinifex grass in North-West Queensland that have been used to develop extremely strong rubber reinforcement for a range of latex products and as a road base additive for strengthening bitumen. It is also being explored as a toughening agent in a wide range of building materials. 

In the industrial area we have water repellent and flame resistant biodegradable plastics being created using the fibres from the nesting material of native honey bees in South-East Queensland. In agriculture we have some work going on on the characteristics of resilient or wild agricultural crops to make our standard food crops such as rice more productive and more resistant to drought, climate change and so on.

Griffith University described some of the benefits and economic potential of the biodiscovery industry to Queensland at the public hearing to the Bill:

It has a really high potential. Traditionally the pharmaceutical industry looked for these compounds. Right now, with agriculture you cannot get a product in Europe on the field if it is not a natural product. The US is going the same way. In cosmetics, people want natural products. With food additives it is the same thing. We talked to two of the four largest food companies about NatureBank. There is immense potential, but it is hard to get there. In each field, only one out of several thousand makes it. It is a high-risk activity, but the key is that the more it is used, the more success we have and the more success is coming back to Queensland, to university, to our Indigenous partners, to traditional knowledge holders. It is really about enabling easy, clear deal flow in a certain sense. The more that is happening and the more results that are used, the more benefits there are.

Other jurisdictions 

Queensland was the first State or Territory in Australia to implement an access and benefit sharing (ABS) framework for biodiscovery with the introduction of the Act, providing Queensland’s emerging biotechnology industry with greater certainty and giving effect (in part) to Article 15 (about access to genetic resources) of the CBD. Since 2004, other jurisdictions both nationally and internationally have adopted access and benefit sharing legislation and policies, such that the Act in its current form is now inconsistent because it does not include provisions for the use of traditional knowledge. 

Commonwealth legislation, specifically the Environment Protection and Biodiversity Conservation Act 1999 regulations, establish a process for ABS on Commonwealth land where traditional knowledge is used. Commonwealth regulations require that a benefit sharing agreement contains:

• a statement regarding any use of Indigenous people’s knowledge, including details of the source of the knowledge, such as, for example, whether the knowledge was obtained from scientific or other public documents, from the access provider or from another group of Indigenous persons 

• a statement regarding benefits to be provided or any agreed commitments given in return for the use of the Indigenous people’s knowledge 

• if any Indigenous people’s knowledge of the access provider, or other group of Indigenous persons, is to be used, a copy of the agreement regarding use of the knowledge (if there is a written document), or the terms of any oral agreement, regarding the use of the knowledge. 

The Northern Territory’s Biological Resources Act 2006 requires similar information, however in the form of details of the benefits the access provider will receive in return for the taking of resources. This may be more limited than the Commonwealth’s approach as it focusses on access providers only. 

The Australian Capital Territory’s Nature Conservation Act 2014 also includes provisions for benefit sharing when accessing biological resources, similar to the Northern Territory approach. When entering into a benefit sharing agreement with an access provider, the agreement must provide for reasonable benefit sharing arrangements, including protection for, recognition of and valuing of any Aboriginal or Torres Strait Islander people’s knowledge to be used. As with the Northern Territory Act, the legislation is focused on benefit sharing with access providers (for traditional knowledge, this may mean those with an exclusive possession Native Title claim granted) and is thus narrower in scope than the Commonwealth regulations. 

The Bill is intended to advance the protection of traditional knowledge in biodiscovery beyond the frameworks in other States as requirements for prior informed consent and benefit sharing apply State-wide and irrespective of whether a traditional custodian has an access right over given land. In this way, the traditional knowledge protections provided by this Bill are significantly more robust and broader in scope than other laws in Australia and are reflective of an evolving understanding and appreciation of traditional knowledge, and the rights of First Nations peoples to self-determination. 

The Bill Hon Leanne Enoch MP, the Minister for Environment and the Great Barrier Reef, Minister for Science and Minister for the Arts, stated in her introduction speech that the Bill’s purpose is to amend the Act and the Right to Information Act 2009 to ‘ensure the use of traditional knowledge in biodiscovery is protected and to support economic opportunities for First Nations communities in Queensland’. 

Minister Enoch further stated that the Bill will help to meet Queensland’s:

... international obligations, fulfil the government's commitment to support the commercialisation of new bioproducts and improve the business environment for biodiscovery in Queensland. 

Amendment of Biodiscovery Act 2004 

Purpose of the Act 

Clause 5 amends the purposes of the Act (section 3) to include a new purpose to encourage biodiscovery entities to only use traditional knowledge for biodiscovery with the agreement of the custodians of that traditional knowledge, where the custodians are the Aboriginal or Torres Strait Islanders to whom the traditional knowledge relates. 

This is a new purpose and achieved by imposing requirements on persons accessing or using traditional knowledge for biodiscovery including a new obligation on a person who chooses to use traditional knowledge for biodiscovery, to do so only with the agreement of the custodians of that knowledge (section 3). The objective of amending the Act in this way is to ensure Queensland’s regulatory framework is contemporary, effective and equitable, and suitably reflects international standards, namely the Nagoya Protocol. The Act cannot align with the Nagoya Protocol without recognising and protecting traditional knowledge. 

Using traditional knowledge for biodiscovery 

Clause 10 provides for a new Part (Part 2A) in the Act and additional legislative provisions to recognise and protect traditional knowledge used for biodiscovery. It also aligns the Act more closely to international standards for ABS by establishing an obligation on persons using traditional knowledge for biodiscovery. 

Failing to comply with the obligation will trigger a new penalty provision of up to 5,000 penalty units and be considered an executive liability provision similar to existing offences under the Act. A penalty of this size is consistent with other serious offences in the Act, such as using native biological material sourced from State lands or Queensland waters for biodiscovery without a benefit sharing agreement.

Traditional knowledge Code of Practice 

The Bill proposes that a person is not limited in how they comply with the traditional knowledge obligation, however to ensure people can satisfy this obligation and are fully aware of how to do so, a traditional knowledge Code of Practice (the Code) will be developed in consultation with stakeholders. The Code will define when the traditional knowledge obligation applies; processes for identifying the custodians of traditional knowledge; and the reasonable and practical steps that a person must follow. Compliance with the Code will fulfil the obligation. 

Providing a pathway for compliance through the Code in Division 3 ensures that industry and First Nations peoples are clear about what is required to satisfy the obligation. The Code would detail the minimum steps required, including that free and prior informed consent of the custodians of the traditional knowledge must be obtained before traditional knowledge is used for biodiscovery. This means that consent is given willingly without coercion, and based on having a clear understanding of the project details such as its design, duration, likely benefits and impacts. The Code will also detail that benefit sharing must be negotiated on mutually agreed terms, between the custodian of traditional knowledge and the person who accesses the traditional knowledge. The State would not be a party to these agreements. 

The Code will also detail 

• under what circumstances the traditional knowledge obligation applies 

• how to identify the appropriate/authorised custodian of the traditional knowledge 

• definitions for free and prior informed consent, benefit sharing and mutually agreed terms 

• minimum requirements to fulfil the traditional knowledge obligation under different circumstances, such as when biodiscovery activity is undertaken on non-State land and/or when ex-situ collections of native biological material are accessed. 

The Code can only be prepared in consultation with First Nations peoples and the biodiscovery industry. The department advised that guidelines to ‘facilitate compliance’ with the traditional knowledge obligation and Code will also be produced to further support industry engagement with First Nations peoples, such as identifying culturally appropriate ways to negotiate free and prior informed consent and mutually agreed benefits arising from a biodiscovery project. 

The Code and supporting guidelines will enable biodiscovery entities and First Nations peoples to collaborate more easily by, for example, identifying culturally appropriate ways to negotiate free and prior informed consent and benefit sharing.  The department informed the committee that the Code will be set out in subordination legislation, while the guidelines will not. 

On the issue of conflict resolution, and concerns held by the committee as to possible delays due to conflicting interests among traditional owners, the department advised the Code would address this issue ... 

Jurisdiction 

During consultation, stakeholders shared that because of past government policies that resulted in, for example, the Stolen Generation, some traditional knowledge may not always be connected to a given parcel of land, or the land from which the native biological resource was collected. In order to properly recognise and protect all traditional knowledge about native biological material used for biodiscovery, the obligation would apply state-wide. 

Collection authority requirements 

Clause 11 relates to Part 3 Collection Authorities in the Act and amends procedural requirements for application for a collection authority. References to the Environmental Protection Agency (a legacy of machinery of government changes) and biodiscovery plans have been removed. Approvals under the Act have been simplified by removing the requirement for biodiscovery entities to apply for and obtain an approved biodiscovery plan, on the basis that information contained in the biodiscovery plan is provided in the application for a collection authority, or in the negotiation of a benefit sharing agreement with the State. 

Clause 12 proposes to amend section 12 of the Act relating to the contents of a collection authority, to include a description of the proposed commercial use of material proposed to be taken under the collection authority. 

Clause 13 would provide consistency with other provisions by omitting references to the Environmental Protection Agency and biodiscovery plans as per clause 11. 

Clause 14 proposes to amend current legislative provisions for public access to the collection authority register in section 28 of the Act, to omit references reflecting government changes. 

Consequential minor amendments 

The Bill proposes a number of consequential amendments to the Act, as outlined below: 

Clause 15 provides for a minor amendment to section 29 of the Act, which incorrectly makes a direct reference to a penalty. 

Clause 16 proposes to amend current legislative requirements for the Minister to enter into a benefit sharing agreement. This amendment would establish that the Minister must not enter into a benefit sharing agreement with a biodiscovery entity unless satisfied that a biodiscovery entity does not have a traditional knowledge obligation (because it has not or will not use traditional knowledge) or that the entity has met and will continue to meet their traditional knowledge obligation. This can be outlined in the benefit sharing agreement (see clause 17). 

Clause 17 outlines that for consistency, the new provision for a traditional knowledge obligation would mean that future benefit sharing agreements will be negotiated and agreed on the basis that a biodiscovery entity has discharged and will continue to discharge its obligation regarding the use of traditional knowledge, where the obligation applies (i.e. they have or may use traditional knowledge). 

Clause 18 outlines that for consistency, the removal of biodiscovery plans from the approvals process means that benefit sharing agreements will no longer be conditioned to include only the activities detailed in an approved biodiscovery plan, and therefore only one statutory condition applies to benefit sharing agreements relative to the biodiscovery entity’s relationship with other entities. 

Clause 19 outlines that for consistency, the provisions for the approval of biodiscovery plans as per part 5 Division 2 of the Act will be repealed. 

Clause 20 provides consistency with other provisions to remove unnecessary reference to ‘State native biological resources’. 

Clause 21-26 proposes to remove historical references to Queensland Government departments and/or references to departments that no longer have responsibility for administering the Act or references to past processes that are now redundant.   Clause 26 adds a new reference to the Code, as a stated document, to be made under the Act. It also removes any reference to a biodiscovery plan for consistency purposes. 

Clause 27 provides consistency by including the traditional knowledge obligation in the list of executive liability provisions similarly to other serious offences of equivalent and/or lower penalty under the Act. 

Clause 28 provides consistency by removing reference to a biodiscovery plan. 

Clause 29 notes that in reference to the Public Service Act 2008 and provision for the protection of civil liability in relation to State employees in section 26C, a similar provision may be provided for the Minister in other Queensland legislation as required. 

Clause 30 provides a minor amendment to section 120 of the Act to omit reference to ‘an official’ in favour of ‘the Minister or chief executive’.  

Clause 31 omits the provision for review of the Act as it is no longer required on the basis the Act has been in operation for longer than 5 years and reviewed twice during its operation. 

Clause 32 provides consistency with other provisions by omitting references that are a legacy of machinery of government changes. 

Repeal and transitional provisions 

Clauses 33 – 34 of the Bill provide for consequential changes to Part 13 of the Act (Transitional provisions) in order to repeal Part 15 of the Act. Clause 13 inserts a new division (Division 3) in Part 13 to allow for the transitional provisions that would arise from the introduction of this Bill. In regard to compliance, the explanatory notes state:

These provisions acknowledge that a person cannot be prosecuted for not complying with the traditional knowledge obligation until the first traditional knowledge code of practice (the Code) is approved by regulation, given that the Code outlines how a person is able to discharge the traditional knowledge obligation. However, a person is not prevented from complying with the traditional knowledge obligation before the Code is made.40

Clause 35 would allow for the approval process to continue under the current provisions of the Act. The explanatory notes advise that ‘prosecution is not warranted for a person who has engaged in or are continuing to engage in biodiscovery activities approved prior to the Act commencing, provided that what is contemplated or undertaken is in line with what has been approved. However, this does not prevent a person from complying with the new traditional knowledge obligation in these circumstances’. 

For the purposes of developing the Code, the explanatory notes state: The Minister is required to consult with First Nations Peoples and biodiscovery entities in the making of the Code and the consultation undertaken in the making of the first Code satisfies this obligation.

In addressing Traditional knowledge provisions the report states

The submission of the Chuulangun Aboriginal Corporation, BioCultural Consulting and Leslie Shirreffs supported the proposed amendments at clause 10 (new section 9B), which require a person to take all reasonable and practical measures to ensure the person does not use traditional knowledge for biodiscovery other than under agreement with the custodians of the knowledge. Their submission suggested the clause should include reference to ‘custodian’s customary obligations’, to be more ‘accurate’,  and the addition of the term ‘apical families’, to refer to ‘the rights of the speakers, knowledge holders and usufructuary rights-based peoples who exercise activities with native biological material’. 

The department noted these suggestions, and stated: 

DES views that recognition of custodians' customary obligations is best contained within the Code, because the Code will contain steps to help people meaningfully engage with, and understand, the specific customary obligations of a First Nations person or community. The concept of customary obligations will need to be defined and this is can be done by developing the Code in consultation with First Nations people.

The department further stated:

The existing definition of custodians was selected to align closely with existing or similar terms used in other Queensland legislation, on the basis that these terms already function effectively and are clear. 

DES envisages that the suggested definition will form a part of the Code, with respect to identifying the custodians of traditional knowledge. 

 Griffith University expressed concern that clause 10 was worded in a way that ‘may have broader consequences, as it seems to extend the traditional knowledge obligation to the use of digital sequence information and other information used separately from the physical materials’.  Accordingly, this may render the provision unworkable. 

For an example, Griffith University submitted:

... a company, which accesses digital genetic sequence data, may have unintended access to Traditional Knowledge from Queensland, as almost all sequence data are heavily annotated, and such annotation may include information gained from Traditional Knowledge from Queensland that may be in the public domain (e.g. originating from a scientific publication).

At the public hearing Dr Fran Humphries elaborated on Griffith University’s concerns:

In Queensland I think we need to be cautious in terms of the way the bill is drafted so that it does not necessarily bring in using digital sequence information or the intangible aspects of the genetic material separately from the physical material, having that connected with the traditional knowledge if in the act the traditional knowledge is not connected with the physical material in terms of it being the transaction. Is that fairly clear? If you have a benefit-sharing agreement for the physical materials and a benefit-sharing agreement for the traditional knowledge, and if the traditional knowledge does not relate to the physical materials seen in Queensland, I guess in terms of the definition of biodiscovery it imports aspects of information.

In response to Griffith University on this matter, the department clarified: 

Digital sequence information about native biological material is already included within the scope of the Biodiscovery Act. The traditional knowledge obligation only applies to digital sequence information that is utilised as a direct result of traditional knowledge.

Jocelyn Bosse and David Jefferson of the UQ School of Law, noted the wording of clause 35 of the Bill, which proposes to insert new section 139(2)(b) to provide an exception if a person ‘engages in other biodiscovery contemplated by the existing biodiscovery’. Their submission suggested the term contemplated was ‘overly subjective’ and suggested the use of the words ‘directly linked to the existing biodiscovery’ instead.   

The department stated that it considered the suggested wording changes to the Bill, ‘but is of the view that the existing drafting is clear’. 

The submission of the Chuulangun Aboriginal Corporation, BioCultural Consulting and Leslie Shirreffs called for specific provisions to be added to the legislation concerning the making of guidelines to ‘further support’ the use of traditional knowledge. 

The department responded by stating that this suggestion was considered, but that the guidelines are not a statutory instrument. The department further stated: ‘DES will develop the guidelines in consultation with First Nations people and biodiscovery entities to ensure they are fit for purpose’