Geographies

'Identifying and Preventing Biopiracy in Australia: patent landscapes and legal geographies for plants with Indigenous Australian uses' by Daniel Robinson and Margaret Raven in (2016) 1 Australian Geographer comment

There are legal and moral imperatives to protect biological resources and the ‘traditional knowledge’ associated with them. These imperatives derive from complex legal geographies: international law (such as the Convention on Biological Diversity and the Nagoya Protocol), State and federal laws, Indigenous customary law, codes of ethics and research protocols. This paper reports on a ‘patent landscape’ analysis of patents that refer to Australian plant species for which there is Indigenous Australian knowledge. We have identified several patents of potential new biopiracy concern. The paper highlights the way in which actors can gain private property monopolies over biological resources and associated traditional knowledge, even though there are overlapping sovereign rights and Indigenous rights claims. Regulatory gaps need to be closed nationally to fully govern the diverse human–plant bio-geographies in Australia. Further, Indigenous laws and governance have largely been ignored by these actors. We suggest that the introduction of ‘disclosure of origin’ requirements in patent applications, sui generis Indigenous knowledge protections, the development of biocultural protocols, and a more nationally consistent system for ‘access and benefit-sharing’ are required to ensure more ‘fair and equitable’ use of plants and Indigenous knowledge in/from Australia, and to ensure the recognition of Indigenous rights to knowledge.

The authors conclude

In 1992 the Convention on Biological Diversity introduced an international basis for conserving and regulating R&D on genetic and biological diversity and associated traditional knowledge. The Nagoya Protocol which was adopted in 2010, and in force in 2014, provided a more detailed legal framework for the Convention’s objective of fair and equitable sharing of benefits arising out of the utilisation of genetic resources. The Nagoya Protocol called on countries to improve protections of Indigenous knowledge—by encouraging states to recognise relevant customary laws through developing community (or biocultural) protocols. The use of protocols may help document and identify ‘knowledge-holders’ or communities’ customary laws, beliefs and interests, which may otherwise remain unknown to researchers (see Bavikatte and Jonas 2009; Raven 2010 ).

Contrary to such attempts, Australia does not have a ‘nationally consistent’ approach to biodiversity regulation. Gaps exist in Australia’s ABS framework across State and Territory legislation, an incomplete and fractured legal geography. These laws have limited assertion of Indigenous rights over their knowledge and associated biological resources. The most detailed are the Commonwealth Regulations under the Environmental Protection and Biodiversity Conservation Act 1999; and the Northern Territory Biological Resources Act 2006.

This incomplete legal geography may be the reason why patents are awarded for ‘innovations’ that use genetic resources and associated Indigenous knowledge without PIC and ABS agreements. The patent landscape analysis used in this article indicates hundreds of instances where Indigenous knowledge may have been used as an element of ‘discovery’ for the patent. Five patents of concern were identified, over the plants commonly known as ‘old man weed’, ‘emu bush’, and ‘Kakadu plum’. In these cases it is possible that Indigenous knowledge was utilised as a lead for commercial use of the plant, R&D, and/or patent claims. The patents examined in this article highlight the ethical, customary and cultural affront that may be caused by using Indigenous knowledge without PIC, and that Indigenous knowledge-holders and other providers may lose out on any potential benefits from the commercialisation of biological and genetic resources and associated traditional knowledge. This would also be particularly damaging if the patents prevent trade in specific products relating to those patented ‘innovations’.

In 1992 the Convention on Biological Diversity introduced an international basis for conserving and regulating R&D on genetic and biological diversity and associated traditional knowledge. The Nagoya Protocol which was adopted in 2010, and in force in 2014, pro- vided a more detailed legal framework for the Convention’s objective of fair and equitable sharing of benefits arising out of the utilisation of genetic resources. The Nagoya Protocol called on countries to improve protections of Indigenous knowledge — by encouraging states to recognise relevant customary laws through developing community (or biocultural) protocols. The use of protocols may help document and identify ‘knowledge-holders’ or communities’ customary laws, beliefs and interests, which may otherwise remain unknown to researchers (see Bavikatte and Jonas 2009; Raven 2010). Contrary to such attempts, Australia does not have a ‘nationally consistent’ approach to biodiversity regulation. Gaps exist in Australia’s ABS framework across State and Territory legislation, an incomplete and fractured legal geography. These laws have limited assertion of Indigenous rights over their knowledge and associated biological resources. The most detailed are the Commonwealth Regulations under the Environmental Protection and Bio-diversity Conservation Act 1999; and the Northern Territory Biological Resources Act 2006. This incomplete legal geography may be the reason why patents are awarded for ‘innovations’ that use genetic resources and associated Indigenous knowledge without PIC and ABS agreements. The patent landscape analysis used in this article indicates hundreds of instances where Indigenous knowledge may have been used as an element of ‘ discovery ’ for the patent. Five patents of concern were identified, over the plants commonly known as ‘old man weed’ , ‘emu bush’ , and ‘Kakadu plum’. In these cases it is possible that Indigenous knowledge was utilised as a lead for commercial use of the plant, R&D, and/or patent claims. The patents examined in this article highlight the ethical, customary and cultural affront that may be caused by using Indigenous knowledge without PIC, and that Indigenous knowledge-holders and other providers may lose out on any potential benefits from the commercialisation of biological and genetic resources and associated tra- ditional knowledge. This would also be particularly damaging if the patents prevent trade in specific products relating to those patented ‘innovations’.

Ambiguity existed regarding the source and origins of biological resources and associ- ated Indigenous knowledge in almost all of the patent documents searched. This gives credence to the suggestions by Tobin (1997), Sarnoff and Correa (2004), Dutfield (2005), Oldham, Hall, and Forero (2013) and others that an international ‘disclosure of origin’ patent requirement would provide a checkpoint to ensure that ABS rules have been followed. Internationally, significant progress was made towards a disclosure of origin requirement in the World Trade Organisation (WTO) Trade Related Aspects of Intellec- tual Property Rights (TRIPS) Council, with at least 108 countries — more than two-thirds of the WTO’s members — expressly endorsing a proposed disclosure of origin amendment to the TRIPS Agreement (see WTO TRIPS Council 2008; Bagley, forthcoming). These negotiations then slowed significantly and developed countries opted to move the ‘disclosure of origin’ to the WIPO IGC where negotiations have stalled. Australia now has an opportunity to show leadership in the WIPO IGC by implementing a disclosure of origin requirement and developing sui generis protections in collaboration with Indigenous leaders, organisations and communities.

It is not clear whether Indigenous knowledge was used for all the patents identified in this paper, but it seems likely Indigenous knowledge was used as a lead in several of the cases. The failure of these patent-holders to recognise and seek permission for Indigenous knowledge use reverberates the processes of colonisation. As Dutfield (2004, 58–59) explains, this process assumes a res nullius (the property of nobody) treatment of territories, ecosystems, plant species and Indigenous knowledge before their ‘discovery’ by explorers, scientists, corporations or governments. By ignoring Indigenous customary laws, rules, rituals and beliefs, and the ABS framework, these researchers and companies appear to breach or sidestep Australian laws at multiple scales and in multiple forms of jurisprudence — including Indigenous jurisprudence. As Dutfield ( 2013) and Tobin (2013) point out, Indigenous peoples are better equipped to look after their own interests if they receive greater recognition of rights enabling self-determination over their own economic, social and cultural interests and development. This involves recognising Indigenous or customary laws over nature and knowledge, or developing biocultural/community protocols. 

The results of patent landscape analysis signal possibilities of Aboriginal actors filing for patents as joint owners and/or joint inventors. For example, Patent WO/2011/ 057332 was filed jointly by Chuulangun Aboriginal Corporation and the University of South Australia, and other patents have been filed jointly by Jarlmadangah Burru Abori-ginal Corporation and Griffith University (see Holcombe and Janke 2012). But limited duration (20 years), exclusivity, and requirements of novelty and obviousness often make patents poor candidates for protection of Indigenous knowledge - often orally shared, communally and customarily regulated, held by various knowledge-holders, associated with culture, rituals and practice.

Given the high level of endemicity of plants in Australia, and the rich and widespread Indigenous knowledge of their potential uses, it seems clear that Australia and its Indigenous peoples could benefit from changes to the national legal landscape. First, the develop-ment of an effective nationally consistent ABS framework is needed through complete implementation of the Convention on Biological Diversity and the Nagoya Protocol, including ABS provisions that respect the rights of Indigenous communities and require PIC and MAT for access to Indigenous knowledge. Second, ‘disclosure of origin’ in patent applications would assist with monitoring the implementation of inter- national ABS provisions, including compliance with PIC. Last, greater recognition and protection of Indigenous rights and customary laws relating to biological and genetic resources is required. While projects such as IP Australia’s Dream Shield may assist Indigenous businesses, further protections, such as sui generis protections that recognise customary laws and biocultural protocols for governing Indigenous knowledge, could assist with this recognition of rights that are already enshrined in international law.