AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2009 >> [2009] IndigLawB 36

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Collings, Neva; Evans, Heidi --- "Access and Benefit Sharing - Protecting Biodiversity and Indigenous Knowledge" [2009] IndigLawB 36; (2009) 7(14) Indigenous Law Bulletin 11


Access and Benefit Sharing – Protecting Biodiversity and Indigenous Knowledge

Neva Collings and Heidi Evans

The Convention on Biological Diversity (‘CBD’) is an important international treaty for Indigenous communities who assert ownership of biological and genetic resources found on their lands and territories, and whose knowledge about these resources has commercial potential. The CBD sets out the three key objectives: conservation, sustainable use and fair and equitable sharing of benefits derived from the use of biodiversity.[1] Further to this third aim, all States Parties are bound to

respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.[2]

Parties are also required to develop legislative, administrative and policy measures with the aim of ‘sharing in a fair and equitable way’ the benefits arising from ‘commercial and other utilisation of genetic resources’ on mutually agreed terms.[3]

To assist with implementation of these obligations, and to clarify their precise content, the Parties to the CBD established in 2000 an ad hoc Working Group to develop an international framework to regulate access and benefit sharing (‘ABS’). The first task of the ABS Working Group was the negotiation of Access and Benefit Sharing Guidelines (‘the Bonn Guidelines’) which, as a voluntary code of conduct, do not offer enforceable ABS protection. That is, while encouraging best practice, states can depart from the Bonn Guidelines where it considered necessary or commercially expedient. Developing nations and Indigenous peoples, tired of having their genetic resources exploited by wealthier nations, bioprospecting and commercial research entities, wished to develop a regime setting out binding processes and standards. At the World Summit on Sustainable Development in 2002, it was decided that the ABS Working Group ought to be given an expanded mandate to better protect the interests of these vulnerable groups.

The drafting process for the ABS regime has been mired in controversy and political wrangling. Meeting for its seventh session in April this year, the Working Group made little headway in negotiations and failed to achieve agreement about the appropriate scope and objectives of the ABS framework. While draft text has emerged, synthesising the views of all stakeholders, including Indigenous peoples and industry representatives, most provisions are bracketed, meaning that no consensus was achieved as to their proposed wording.

The final text of an internationally-binding regime is set to be finalised by the Tenth Conference of the Parties to the CBD, to be held in Nagoya, Japan in December 2010. Before that time, the Working Group reconvenes in November this year, where negotiations will be focused on draft provisions relating to Indigenous traditional knowledge, with a final ABS Working Group scheduled in March 2010 to be held in Columbia. This paper examines some of the difficulties and competing interests between stakeholders that may derail these future negotiations. Using the Australian ABS regime as an example, it advocates for greater leadership by government and powerful industry to ensure long-term, meaningful protection of Indigenous communities’ rights to biodiversity.

Traditional Knowledge – A Sticking Point?

Indigenous groups around the world have been lobbying to ensure that the ABS regime incorporates the rights of Indigenous peoples as set out in existing international human rights instruments, with particular focus on those contained in the Declaration on the Rights of Indigenous Peoples (‘DRIP’). In addition to obligations of consultation, free prior informed consent on mutually agreed terms - considered by Indigenous peoples to be pre-requisites to equitable benefit sharing – they are seeking to import into the ABS framework protection for owners of traditional knowledge regarding the use of biological and genetic resources.

Article 31 of the DRIP states that Indigenous peoples have the right to ‘maintain, control, protect and develop’ their traditional knowledge as well as ‘the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs’. Article 31 also asserts a right ‘to maintain, control, protect and develop their intellectual property’ over such traditional knowledge. Certainly, adapting the ABS regime in recognition of these rights seems inconsistent with Art 15(1) CBD, which recognises the ‘sovereign rights of States over their natural resources’ and that ‘the authority to determine access to genetic resources rests with the national governments and is subject to national legislation’.

Throughout negotiations, there has been extensive debate as to whether traditional knowledge about biodiversity is rightly situated under the CBD. The characterisation of traditional knowledge as intellectual property has led some states to argue that ABS is better dealt with under the Agreement on the Trade Related Aspects of Intellectual Property Rights (‘TRIPS agreement’) or that it more appropriately falls under the domain of the World Intellectual Property Organisation (‘WIPO’).

Despite this characterisation, there are fundamental differences between traditional knowledge and other forms of intellectual property that limit the extent to which the TRIPS agreement can protect such knowledge. A key factor is the way in which Indigenous knowledge is shared and transferred within a community, which does not fit comfortably within the individualised, knowledge-protection TRIPS paradigm. Further, its trade-focused ideology conflicts with the sustainable use objectives of the CBD. Given that much of the impetus for ABS protection comes from exploitative trade practices by powerful corporate entities, there is significant doubt as to whether a trade orientation can effectively protect the rights and interests of Indigenous peoples in the use of their traditional knowledge.

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (‘the IGC’) has similarly been nominated as an appropriate forum to address ABS. The IGC was established in response to a wide consultation across various Indigenous and non-Indigenous stakeholders, with the aim of identifying ‘the needs and expectations of the holders of [Traditional Knowledge]’.[4] The stated aims and objectives of the IGC are however, limited to intellectual property,[5] leaving no scope to develop a more equitable regime to regulate those challenges particular to access and benefits sharing.

ABS is a still a developing, complex, multi-faceted concept. Questions about sustainable use, equitable distribution of proceeds between multiple stakeholders, protection of Indigenous knowledge - including the legitimate limits on the use of that knowledge – and ownership of land, resources and traditional knowledge are manifold and overlapping. These issues cannot be properly addressed within the confines of international intellectual property law and its associated entities. Finding a workable balance between these competing interests requires cooperation between all parties towards a specifically-adapted, comprehensive, holistic solution. Accordingly, whereas the previous ABS Working Group meeting focused on objective, scope, compliance, benefit-sharing, and access, the Montreal meeting will concentrate on the nature of the regime, traditional knowledge associated with genetic resources, capacity building and negotiations concerning free prior informed consent.

ABS in Action

For the moment, the precise content of states’ obligations under the CBD remains unclear at international law. In the absence of a binding multi-state ABS framework, the implementation at the domestic level of appropriate measures is governed by the Bonn Guidelines and falls largely to individual states. States have been slow to adopt voluntary regulatory systems; Australia, which ratified the CBD in 1992, is one of the few countries to have developed any domestic ABS law and policy to date. With approximately 10% of the world’s biodiversity found on our shores, giving rise to significant research and development potential, the Australian scheme provides a useful reference point for how existing understandings of ABS protection may operate in practice.

At the federal level, ABS is regulated under the Environment Protection and Biodiversity Conservation Regulations 2000 (‘Cth’) (‘EPBC Regulations’) which provide rules to facilitate access and benefit sharing for commercial and research purposes. This mandatory scheme applies only to biological resources on Commonwealth land.[6] Part 8A.2 of the Regulations sets out that, where access is for commercial purposes, parties must enter into a benefits-sharing agreement,[7] which must provide for

reasonable benefits-sharing arrangements, including protection for, recognition of and valuing of any Indigenous people’s knowledge to be used.[8]

It also requires consultation to be carried out with the owners of land where it is leased by the Commonwealth[9] on the basis of informed consent.[10] Importantly, the agreement only takes effect where a permit has been issued by the Minister.[11] Similarly, Part 8A.3 sets out that, where access to resources is for non-commercial purposes, the research entity must obtain the written permission of the access provider,[12] which only becomes effective on issue of a permit by the Minister.[13]

Access to resources on non-Commonwealth territory is governed by state law; this varies between jurisdictions and, in most instances, has not yet been developed. While many provide legislation through which research permits may be obtained, few Australian states or territories have introduced a regime that provides for specific ABS protection. To provide guidance in this regard, the Commonwealth Department of the Environment, Water, Heritage and the Arts (‘DEWHA’) has developed the Nationally Consistent Approach for Access to and the Utilisation of Australia’s Native Genetic and Biochemical Resources (‘Nationally Consistent Approach’).[14] This national framework establishes general principles and common elements to be implemented across all ABS arrangements secured within Australia. Under the Nationally Consistent Approach, ABS schemes in each jurisdiction shall:

provide for ecologically sustainable access and use of biological resources; enable fair and equitable benefit sharing arrangements from the profits generated by use or application of the resource; ensure the use of traditional knowledge is undertaken with the cooperation and approval of the holders of the knowledge and on mutually agreed terms; and they are to be developed in consultation with stakeholders, Indigenous peoples and local communities.[15]

The Northern Territory and Queensland are the first jurisdictions to enact specific ‘bioprospecting’ legislation. The Northern Territory Biological Resources Act 2006 (NT) largely mirrors the EPBC Regulations, as intended under the Nationally Consistent Approach. The Act not only acknowledges Indigenous peoples as resource providers where they own the land on which a biological resources exist, it also expressly recognises the special knowledge held by Indigenous persons about biological resources.[16] ABS agreements must be founded on the principles of prior informed consent and mutual terms. Under the Act, agreements must provide for reasonable benefit-sharing arrangements, including the protection, recognition and valuing of Indigenous knowledge. An ABS agreement is a requirement where knowledge is obtained from an Indigenous person or persons, however knowledge or information already in the public domain has no right to the same protection.[17]

The consent authority must be satisfied of a number of things before granting a permit. First, that the communities providing access to these resources had adequate knowledge of the Act and were able to engage in reasonable negotiations about the benefit sharing agreement. Further, that the resource provider had adequate time and, where the biological resources are on Aboriginal land, did consult with the traditional owners. Finally, that the resource provider received independent legal advice about the application and requirements of the Act.[18]

The situation in Queensland, however, is rather different. While the Biodiscovery Act 2004 (Qld) establishes a regime facilitating access and benefit-sharing with regard to biological and genetic resources, it does so with scant reference to the interests of affected Indigenous communities. It does not explicitly require benefit-sharing as of right with Aboriginal and Torres Strait Islander people, does not provide any recognition for their traditional knowledge, and does not require prior informed consent or mutual terms. While this has not prevented the adoption of ABS agreements between Indigenous groups and pharmaceutical or other resource-accessing parties, there is no requirement that an agreement be drawn up where private entities utilise traditional knowledge; the legislation provides no way for communities to control commercial use of this potentially valuable resource.

The difference in these two approaches suggests that, even where states are receptive to providing ABS protection under the CBD, there is no guarantee that the measures introduced will properly protect the needs of Indigenous people, or that they will be developed in a way that gives full respect to their legitimate interests. Without explicit and mandatory ABS protection, together with accessible enforcement mechanisms, there is a risk that Indigenous needs and concerns will continue to be ignored or overridden where they prove commercially inconvenient.

The Need for Substantive Guidance

While the EPBC Regulations and Nationally Consistent Approach have implemented Australia’s international ABS obligations under the CBD, they provide only the bare minimum guidelines about appropriate the content of an ABS agreement. While the Northern Territory legislation provides an example of Australia’s potential to provide a comprehensive legal framework for ABS agreements, the general approach in Australia has been largely one of form over substance. DEWHA developed a Model Access and Benefit Sharing Agreement, to guide sate governments and relevant stakeholders in developing ABS arrangements,[19] although to date very few such agreements have been drawn up. Besides this document, little guidance has been provided about the concrete terms required to ensure that agreements are consistent with the objectives of the CBD.

The main requirement under the EPBC Regulations is that of ‘reasonableness’, which demands that benefit-sharing arrangements include ‘protection for, recognition of and valuing of any Indigenous people’s knowledge’.[20] How this ought to be achieved is not elaborated. With so little guidance, it is open to negotiating parties to determine what is ‘reasonable’; without further safeguards, this is insufficient to redress the unbalanced bargaining power between providers and users of the resources. This can be seen from the lease agreement between traditional landowners of Kakadu National Park and the lessee, the Director of National Parks and Wildlife. Even though the Park is Aboriginal owned land, owner communities play a prominent role in Kakadu’s day-to-day management, and Indigenous knowledge has been widely incorporated into management practices throughout the Park, Indigenous communities only share in 25% of entrance and camping fees.[21]

A better example of an ABS agreement can be found in the partnership between researchers at Griffith University in Queensland and the Jarlmadangah Buru people of the Kimberley region in Western Australia.[22] The agreement is in respect of knowledge of the bark of the Barringtonia acutangula mangrove plant, traditionally used to hunt and trap fish for food. The plant species was brought to the attention of researchers in the early 1990s and over a number of years, following the formation of a partnership with the Jarlmadangah Buru, researchers from Griffith University developed an analgesic compound from the bark of the plant.

The agreement between the parties provides for the split of profits, should a commercial product be developed, to be 50:50. This is based on the premise that traditional knowledge about use and collection, and the scientific expertise required to develop compounds, have contributed equally to the realisation of the final product.[23] Further, commercialisation and marketing is to be taken on by an external pharmaceutical company, to be approached collaboratively by the parties. The company selected will be required to consult directly with both the researchers and the Jarlmadangah Buru in developing a commercial strategy, ensuring the ongoing community participation in decision-making regarding the use of their knowledge.

The partnership has taken out patent applications for the protection of traditional knowledge relating to use of the mangrove species, and the Jarlmadangah Buru have taken a prominent role in this process. More recently, with funding of $175,000 provided by the National Health and Medical Research Council, the partnership is seeking to incorporate a suitable company to manage the commercialisation of the product.[24]

Given the mercantile interests at stake, the debate about how to secure equitable exploitation of biodiversity in a sustainable way is not a straightforward one. These two examples demonstrate quite clearly the potential for divergence. While there are no hard and fast rules, there is certainly scope for significant creativity, cooperation and inclusiveness in concluding long-term, equitable ABS agreements.

Conclusion

The complexity of issues relating to traditional knowledge, and the general absence of domestic laws and policies granting full recognition of Indigenous rights over land and resources, suggests that ABS is beyond the scope of any regime currently envisaged by Parties to the CBD. The final outcome of the Conference of the Parties in 2010 – whether legally-binding or otherwise – may not provide a strong legal foundation upon which Indigenous peoples can rely in forming ABS arrangements. Even less so if the important principles of free prior informed consent, as well as Indigenous customary use of resources, are not properly recognised.

At the international level, states have been slow to implement domestic ABS protection. In Australia, states and territories have shown little movement on the Nationally Consistent Approach. Minimum standards, taken from international instruments, are not enough to ensure that Indigenous peoples receive their fair and equitable share of the benefits arising out of the utilisation of biological resources. Ideally, the ABS Working Group will determine an international framework with a higher level of enforceable protection than that which currently exists. In the mean time, industrialised states like ours ought to work towards implementing comprehensive, nation-wide sui generis protection, in substance as well as form, of genetic resources and associated traditional knowledge under domestic access and benefit-sharing laws.

Neva Collings is a solicitor and Aboriginal Liaison Officer with the NSW Environmental Defenders Office (‘EDO’). Neva coordinates the Caring for Country Program at EDO which has published a Guide to Environmental Law for Aboriginal Communities in NSW.

Heidi Evans graduated from Macquarie University in 2007 with a combined Law and Environmental Management Degree. She has since worked at EDO as a Programs Assistant and an Assistant Policy Officer. Heidi has a particular interest in Indigenous land and environmental management issues.


[1] Article 1.

[2] Art 8(j).

[3] Art 15(7).

[4] Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore, produced by the World Intellectual Property Organisation, available at <http://www.wipo.int/tk/en/> .

[5] Ibid.

[6] Regulation 8A.02.

[7] Regulation 8A.07.

[8] Regulation 8A.08.

[9] Regulation 8A.09.

[10] Regulation 8A.10.

[11] Regulation 8A.11.

[12] Regulation 8A.12

[13] Regulation 8A.14.

[14] DEWHA, Nationally Consistent Approach for Access to and the Utilisation of Australia’s Native Genetic and Biochemical Resources available at <http://www.deh.gov.au/biodiversity/science/access/nca/understanding.html> .

[15] DEWHA, Understanding the Nationally Consistent Approach for Access to and the Utilisation of Australia’s Native Genetic and Biochemical Resources, available at <http://www.environment.gov.au/biodiversity/science/access/nca/understanding.html> .

[16] Biological Resources Act 2006 (NT), s 3(2)(d).

[17] Biological Resources Act 2006 (NT), s 29.

[18] Biological Resources Act 2006 (NT), s 28.

[19] DEWHA, Model Access and Benefit Sharing Agreements, available at <http://www.environment.gov.au/biodiversity/science/access/model-agreements/index.html> .

[20] Environment Protection and Biodiversity Conservation Regulations 2000, cl 8A.08.

[21] Australian Government Director of National Parks, Kakadu National Park – Plan of Management 2007-2014, Appendix A, 152, available at <http://www.environment.gov.au/parks/publications/kakadu/pubs/management-plan.pdf> .

[22] UN University Institute of Advanced Studies, Queensland Biodiscovery Collaboration: Griffith University and AstraZeneca Partnership for Natural Product Discovery – An Access and Benefit Sharing Case Study, produced by the United Nations University Institute of Advanced Studies, 32, available at <http://www.ias.unu.edu/resource_centre/Queensland%20Biodiscovery%20Collaboration_The%20Griffith%20University%20AstraZeneca%20Partnership%20for%20Natural%20Product%20Discovery.pdf> .

[23] Ibid.

[24] Ibid.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2009/36.html