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GENETIC RESOURCES AS CULTURE AND HERITAGE: REPATRIATION AND BENEFIT SHARING
Charles Lawson,[1]* Fran Humphries[1]† and Michelle Rourke[1]‡
The United Nations Convention on Biological Diversity (‘CBD’) and its implementing agreement, 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’), provide for access and benefit sharing (‘ABS’) of genetic resources. This article considers whether genetic resources, like bacteria, plants and animals, and their parts and components, can be both property (possession objects representing economic interests of owners) and culture and heritage (objects, ideas, stories and so on, being symbolic of an identity) under the CBD and Nagoya Protocol ABS arrangements, and then what this might mean for possible claims for repatriation. Showcasing Australian laws, the article concludes that conceiving genetic resources as culture and heritage is important for finding creative and effective solutions to fair and equitable benefit sharing for Indigenous Peoples and local communities including repatriation, as well as possible ways forward in addressing the apparently intractable malaise over benefit sharing.
Contents
Natural resources have long been an object of property, with some international recognition of claims to resources of the deep seabed, Antarctica, outer space, the Moon and some plant genetic resources.[1] The United Nations Convention on Biological Diversity (‘CBD’)[2] and its implementing agreement, 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’)[3] marked a significant moment in international law by recognising nation-state sovereign rights over resources[4] within the nation-state’s jurisdiction.[5] Embedded in the CBD was also recognition of the relationship between biological diversity and the knowledge, innovations and practices of Indigenous Peoples[6] and local communities,[7] and traditional customary and cultural practices using biological resources.[8] The Nagoya Protocol then expressly recognised ‘traditional knowledge associated with genetic resources’.[9] More broadly, the CBD and Nagoya Protocol set out frameworks to conserve biological diversity, sustainably use the components of biological diversity and fairly and equitably share the benefits from utilising genetic resources and traditional knowledge.[10]
The basic CBD scheme provides for contracting parties to the CBD to implement legislative, administrative and policy measures facilitating access to ‘genetic resources’[11] within their sovereign control with prior informed consent and mutually agreed terms (known colloquially as access and benefit sharing or ‘ABS’).[12] In this context, ‘genetic resources’ are defined as ‘genetic material of actual or potential value’ and ‘genetic material’ as ‘any material of plant, animal, microbial or other origin containing functional units of heredity’.[13] In practice, however, the term has a very flexible meaning and those implementing the CBD generally apply the term broadly to include most biological materials and derivatives[14] and now some forms of information.[15] More recently, the Nagoya Protocol reinforced the CBD’s nation-state sovereign rights standard,[16] providing more details about the CBD’s implementation for ABS (such as focal points, checkpoints and compliance certificates)[17] and creating additional requirements covering issues such as traditional knowledge associated with genetic resources.[18] For our purposes, however, it is the CBD, and more obviously the Nagoya Protocol, that have framed a distinction between tangible property as possession of objects representing economic interests of owners[19] on the one hand, and culture and heritage as objects, ideas, stories and so on, being symbolic of an identity on the other.[20] This distinction posits an account that distinguishes the modern scientific nature from the timeless political humans.[21] The distinction is most clear in the separate treatment of ‘genetic resources’. On the one hand it is embedded in an economic ABS transactional engagement between resource holders and exploiters, while on the other, it only encourages economic benefits from using the knowledge, innovations and practices of Indigenous Peoples and local communities,[22] and only protects and promotes traditional customary and cultural practices that use ‘biological resources’.[23] The former ‘genetic resources’ requires prior informed consent,[24] mutually agreed terms[25] and the sharing of monetary and non-monetary benefits.[26] However, contracting parties (to the CBD) are only required to ‘respect, preserve and maintain’ knowledge, innovations and practices.[27] These ‘genetic resources’ are also defined by the scientific ideal of ‘functional units of heredity’.[28] The Nagoya Protocol then distinguishes between ‘genetic resources’[29] and ‘traditional knowledge’,[30] imposing only prior informed consent, mutually agreed terms and benefit sharing obligations concerning ‘traditional knowledge associated with genetic resources’[31] and not genetic resources as traditional knowledge per se. The effect of these inherent distinctions in the CBD and Nagoya Protocol is that they reflect a particular way of knowing, and most importantly for our purposes, this is not the only way of knowing.[32]
This artificial separation between tangible and intangible elements does not reflect the practice in many Indigenous cultures. An example from the Abelam peoples of the Sepik foothills of Papua New Guinea illustrates the framing of this distinction between property, and culture and heritage in the context of plant yams that would be both a ‘genetic resource’ and ‘traditional knowledge’ under the CBD and Nagoya Protocol:[33]
A main part of the social and cultural life of these [I]ndigenous groups revolved around the cultivation of the yam plant. Men devoted several months of the year to support the growth of yams. After the harvest, the largest yams were decorated, with the purpose of allowing the yam to incarnate a spirit of the ancestors. In the ceremonies around the decorated yams, men could attain prestige and influence in the group. The decorated yams were manifested in sculptures and other artistic works, which served again to incarnate the yams’ spirits. The act of painting on the objects was considered a sacred activity that rendered the objects powerful. The colours were supposed to attract the spirits, and the objects thereby became materialised spirits. At the same time, the painting was a joint activity and was believed to allow a transfer of knowledge, which could not otherwise be communicated.[34]
The example demonstrates that yams for the Abelam peoples have a physical material value as a plant food yam and also the same materials have other immaterial values that are culture and heritage, such as incarnating the spirit of the ancestor. Here the culture and heritage are indistinguishable from the material yam and its immaterial incarnations and there is a cosmological unity between the biological material (property that can be owned) and its culture and heritage. Put slightly differently, dealing with a yam as a plant food (the tangible property as possession of objects representing economic interests of owners) and then separately as a thing of culture and heritage (objects, ideas, stories and so on, symbolic of identity) may be antithetical to Indigenous Peoples’ ways of knowing.
This article considers whether genetic resources like bacteria, plants and animals, and their parts and components can be both property (possession objects representing economic interests of owners) and culture and heritage (objects, ideas, stories and so on, being symbolic of an identity) under the CBD and Nagoya Protocol ABS arrangements, and then what this might mean for possible claims for repatriation as an element of CBD and Nagoya Protocol benefit sharing. In this context, benefit sharing means the sharing between the providers of genetic resources and their users of any of the resulting benefits (monetary and non-monetary) from those uses,[35] and repatriation means ‘the return of knowledge, innovations and practices of Indigenous Peoples and local communities to where it originated or was obtained for the recovery, revitalization, and protection of knowledge on biological diversity’.[36]
The next Part surveys the legal frameworks under the CBD and Nagoya Protocol to show that resources, information and knowledge are the subject matter of the CBD and Nagoya Protocol, albeit fragmented, and with a positive obligation to repatriate publicly available information and an implied obligation for repatriation as a means of distributing the benefits of biotechnology. After that, the implementation in the Australian domestic Biodiscovery Act 2004 (Qld) (‘Biodiscovery Act’)[37] shows that despite the CBD and Nagoya Protocol’s apparent fragmenting of genetic resources as tangible resources and intangible information and knowledge about those resources, legislative measures can be made addressing both property, and culture and heritage per se so that ‘resources’ embody the resources, information and knowledge as one. Then, in the following Part, a survey of some of the other culture and heritage international frameworks shows that they do not have clear applications for genetic resources as culture and heritage other than the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’)[38] which now provides clear culture and heritage rights over genetic resources including repatriation and the potential for restitution. The article concludes that conceiving genetic resources as culture and heritage is important for finding creative and proper solutions to fair and equitable benefit sharing for Indigenous Peoples (and local communities) including repatriation, as well as possible ways forward in addressing the apparently intractable malaise over benefit sharing.
The CBD has been widely adopted by 196 nation-states, with the notable exception of the United States of America (and the Holy See).[39] The Nagoya Protocol has been adopted by 139 nation-states.[40] The consequence is that there are three different ABS schemes in operation: nation-states applying both the CBD and Nagoya Protocol; nation-states applying only the CBD; and nation-states applying neither the CBD nor Nagoya Protocol. In many nation-states applying the CBD and CBD plus Nagoya Protocol, genetic resources are subject to ABS legislative, administrative and policy measures, and benefit sharing to varying degrees.[41] This is generally concluded through a contract in which the user and provider agree to share the benefits from the use of the genetic resources and/or traditional knowledge associated with genetic resources — in CBD language, mutually agreed terms.[42] Even within these nation-states there is often a patchwork of ABS laws with several jurisdictions having no ABS laws[43] or applying their ABS laws to only some of their territory (and seas).[44]
A useful way to understand the reach of ABS laws is their application to resources, knowledge and information. In accordance with the ordinary practice of international law, the CBD can apply to any biological material if a contracting party determines according to its domestic laws that it is a ‘genetic resource’ for the purposes of its ABS arrangements. While the definition under national law may be similar to that of the CBD, arguably the interpretation of the definition needs to be dynamic to accommodate rapid changes in knowledge and technological capacity.[45] The Nagoya Protocol has the same definition of ‘genetic resources’ as the CBD and clarified that the subject matter scope of ABS extends to ‘derivatives’ being a ‘naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources’.[46] The Nagoya Protocol then expanded the CBD’s traditional knowledge provisions[47] to include specific requirements addressing the resources and knowledge within the control of Indigenous Peoples and local communities,[48] such that, in accordance with domestic law, each party to the Nagoya Protocol must take measures ‘as appropriate, with the aim of ensuring that the prior informed consent or approval and involvement of [Indigenous Peoples] and local communities is obtained for’:[49] (a) ‘access to genetic resources where they have the established right to grant access to such resources’;[50] and (b) ‘traditional knowledge associated with genetic resources that is held by [Indigenous Peoples] and local communities ... and that mutually agreed terms have been established’.[51] Legal recognition of established rights to grant access varies significantly under national laws.[52] States parties must, ‘in accordance with domestic law take into consideration [Indigenous Peoples’] and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources’.[53] As far as possible, parties to the Nagoya Protocol must ‘not restrict the customary use and exchange of genetic resources and associated traditional knowledge within and amongst [Indigenous Peoples] and local communities’.[54] These customary considerations are, however, overtly linked to traditional knowledge subject matter associated with the genetic resources, rather than as the genetic resources per se as traditional knowledge. Further, the resources and knowledge obligations, as such, are framed with broad diplomatic text like ‘[i]n accordance with domestic law, each Party shall take measures, as appropriate, with the aim’[55] that posits them as a matter for each state party to determine as a part of its domestic implementation of their CBD and Nagoya Protocol obligations.
While negotiators in the early discussions about the CBD addressed whether access to information should fall within scope of ABS subject matter,[56] the final text was silent on the issue and instead sets out a separate arrangement for information sharing through a Clearing House Mechanism.[57] The Nagoya Protocol has adopted a similar Clearing House Mechanism.[58] There has, however, always been the potential for ABS contracts about resources to include information as part of the mutually agreed terms, and special measures were made to address confidential information.[59] The distinction between the physical materials and information about those materials and whether this should also be captured by ABS remains contested, with an ongoing discussion about whether ‘digital sequence information’[60] is, or is not, within the ABS transaction.[61] Ahead of a final resolution in future negotiations at the CBD and other forums, a number of states parties have already adopted provisions in their domestic ABS laws that include information about the physical materials as a part of their schemes, effectively extending the meaning of ‘genetic resource’ to include information.[62] This demonstrates the flexibility within the framework provisions of the CBD and Nagoya Protocol, and applied broadly means that genetic resources can be conceived as traditional knowledge per se and within the ambit of the ABS transaction and information provisions (as Queensland’s Biodiscovery Act demonstrates in the next Part).
Once it can be established that resources, knowledge and information fall within scope of subject matter of domestic ABS measures, benefits ‘arising from the utilization of genetic resources as well as subsequent applications and commercialisation’ must be shared in a fair and equitable way with the provider contracting party on mutually agreed terms.[63] The provider contracting party may be the country of origin or the country that acquired the resources in accordance with the CBD.[64] Contracting parties must aim to ensure that such benefits flow to Indigenous Peoples and local communities where they have an established right over the resources, but parties must take measures so that benefits from the use of traditional knowledge flow to the knowledge holders.[65] Benefits may be monetary, such as up-front payments, royalties and profits, or non-monetary, such as capacity building, technology transfer and research participation.[66] The CBD also has positive obligations about repatriation and possibilities for domestic laws to address repatriation according to the commitments under the CBD outside the specific ABS transaction framework.[67] These are addressed in turn.
The positive obligation for repatriation is a part of the scheme about the exchange of information, providing:
2.1 The Contracting Parties shall facilitate the exchange of information, from all publicly available sources, relevant to the conservation and sustainable use of biological diversity, taking into account the special needs of developing countries.
2.2 Such exchange of information shall include exchange of results of technical, scientific and socio-economic research, as well as information on training and surveying programmes, specialized knowledge, indigenous and traditional knowledge as such and in combination with the technologies [including biotechnologies] ... It shall also, where feasible, include repatriation of information.[68]
The CBD’s art 17 conceives information broadly, and includes not only information about the genetic resources, but also the results from downstream research and traditional knowledge incorporated in resulting technologies, including biotechnology. One proviso is that the exchange and repatriation obligations only apply to publicly available information, traditional knowledge and results, and this will likely include the publicly available information from ABS contracts. The threshold of ‘publicly available’ is undefined and can mean different things in different forums.[69] This analysis shows that there is a positive obligation to repatriate publicly available traditional knowledge, and most importantly for our analysis, where genetic resources are conceived as traditional knowledge per se (as Queensland’s Biodiscovery Act demonstrates in the next Part) and so also within the ambit of the ABS transaction and information provisions, then there will be an obligation for repatriation. The potential for domestic laws to deal with this positive obligation to repatriate under the CBD could be addressed directly under states parties’ prior informed consent and mutually agreed terms procedures under national legislation[70] or on a case-by-case basis when negotiating a benefit sharing agreement.[71]
Outside the specific ABS transaction framework, possibilities for repatriation considerations arise in addressing ‘biotechnology’.[72] In this context, ‘biotechnology’ means ‘any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use’.[73] Any uses of ‘genetic resources’ are conceivably ‘biotechnology’, such that benefit sharing obligations for resources, knowledge and information can apply. The CBD provides, in part:
1 Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties.
2 Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms.[74]
These obligations for local participation and priority access to results for providers can help advance repatriation by making available through repatriation the resources, knowledge and information for participation and capacity building. This shows that repatriation can be a form of benefit sharing or a substantive obligation independent of the ABS transaction.
In addition to the formal CBD and Nagoya Protocol ABS provisions, the CBD’s Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(j) was established in 1998[75] and developed a program of work addressing traditional knowledge.[76] This subsequent work has resulted in a number of guidelines and frameworks providing some insight into the scope and content of traditional knowledge and particularly the obligations about repatriation. These working group outcomes centre around traditional knowledge associated with the conservation and sustainable use of biological diversity broadly conceived, including not just genetic resources but ecosystems and ecological complexes and diversity rather than the Nagoya Protocol’s narrow articulation of traditional knowledge associated with genetic resources per se. The outcome of most relevance to the issue of repatriation is the Rutzolijirisaxik Voluntary Guidelines for the Repatriation of Traditional Knowledge of Indigenous Peoples and Local Communities Relevant for the Conservation and Sustainable Use of Biological Diversity (‘Rutzolijirisaxik Voluntary Guidelines’), which facilitate the recovery of traditional knowledge relevant for the conservation and sustainable use of biological diversity.[77] Like the CBD conception, traditional knowledge refers to the ‘knowledge, innovations and practices of [I]ndigenous [P]eoples and local communities’.[78] These Rutzolijirisaxik Voluntary Guidelines provide that ‘repatriation’ means ‘the return of knowledge, innovations and practices of [I]ndigenous [P]eoples and local communities to where it originated or was obtained for the recovery, revitalization, and protection of knowledge on biological diversity’.[79] The repatriation is then facilitated through various principles and considerations, including an ‘entitle[ment] to repatriation’ and ‘respect’,[80] taking into account instruments such as the UNDRIP (considered further below), cooperation with Indigenous Peoples and local communities to develop appropriate measures, assisting Indigenous Peoples and local communities to ‘receive and keep safe, repatriated traditional knowledge and related information, in culturally appropriate ways, as specified by them’, and so on.[81] Importantly, the scope of the Rutzolijirisaxik Voluntary Guidelines are cast to ‘apply to the knowledge, innovations and practices of [I]ndigenous [P]eoples and local communities, relevant for the conservation and sustainable use of biological diversity’[82] that are not temporal and might apply to traditional knowledge acquired at any time, including before 29 December 1993 when the CBD entered into force. For our purposes, the Rutzolijirisaxik Voluntary Guidelines set out guiding principles for how repatriation might be conceived and the relevant kinds of practices to effect operationalised repatriation. In short, the Rutzolijirisaxik Voluntary Guidelines provide substance to how repatriation can be done where genetic resources are conceived as traditional knowledge per se.
In summary, this Part showed that resources, information and knowledge are the fragmented subject matters of the legal frameworks under the CBD and Nagoya Protocol with a positive obligation to repatriate publicly available information and possibilities for domestic laws according to the repatriation commitments under the CBD as a means of distributing the benefits of biotechnology. The next Part shows that despite the CBD and Nagoya Protocol fragmenting genetic resources as physical genetic resources and information and knowledge about those resources, measures can be formulated addressing both property, and culture and heritage as a ‘genetic resource’ conceived as traditional knowledge per se, so that genetic resources can be considered to embody the resources, information and knowledge as one with the possibility of repatriation being embodied in any dealings with genetic resources. We note that our analysis is not about the substance of what is ‘traditional knowledge’, as we point to that depending on what Indigenous Peoples (and perhaps local communities) determine is their ‘traditional knowledge’, but rather the formal CBD, Nagoya Protocol and state legislation embracing a conception and creating spaces for ‘traditional knowledge’. Addressing the diversity of Indigenous Peoples’ (and perhaps local communities’) voices is another project that we are not eligible to pursue, as it is a matter for Indigenous Peoples (and perhaps local communities) themselves to articulate, curate, assess, critique and so on, what is their ‘traditional knowledge’. We also note, in particular, we have been very careful not to articulate the substance of ‘repatriation’ as that will also be determined by Indigenous Peoples (and perhaps local communities) themselves.
The recent amendments to Queensland’s Biodiscovery Act demonstrate that genetic resources can be culture and heritage for Indigenous Peoples (but not local communities under this scheme) within the existing CBD and Nagoya Protocol frameworks. The Biodiscovery Act was intended to give effect in Queensland to certain Australian obligations under the CBD and Nagoya Protocol, although Australia has yet to adopt the Nagoya Protocol.[83] The effect of the legislation is to establish an ABS scheme for accessing ‘native biological material’ for ‘biodiscovery’.[84] The term ‘native biological material’ means ‘a native biological resource’, ‘a substance sourced, whether naturally or artificially, from a native biological resource’ or ‘soil containing a native biological resource’.[85] ‘[N]ative biological resource’ means ‘a non-human living organism or virus indigenous to Australia’ or ‘a living or non-living sample of the organism or virus’.[86] The term ‘biodiscovery’ means ‘biodiscovery research’ or ‘the commercialisation of native biological material or a product of biodiscovery research’.[87] ‘[B]iodiscovery research’ means ‘the analysis of molecular, biochemical or genetic information about native biological material for the purpose of commercialising the material’.[88]
These broad definitions of ‘native biological resource’ and ‘biodiscovery’ essentially capture any kind of biological organism, and parts, components and information about that organism collected in areas under Queensland’s jurisdiction, excluding privately held lands and some lands of Indigenous Peoples[89] (and materials provided with an International Treaty on Plant Genetic Resources for Food and Agriculture (‘Plant Treaty’)[90] standard material transfer agreement).[91] The scheme requires an access permit (a collection authority) to take ‘native biological resources’ for commercial purposes together with an approved biodiscovery plan and benefit sharing agreement.[92] The monetary and non-monetary benefits to be shared are determined as terms and conditions of the benefit sharing agreement.[93] The legislation also extends to traditional knowledge associated with genetic resources requiring ‘free, prior and informed consent’ and that ‘agreements are negotiated with Indigenous Peoples for the fair and equitable sharing of benefits arising from the use of traditional knowledge associated with genetic resources’.[94] The Biodiscovery Act also requires compliance with the relevant codes.[95] These compliance code(s)[96] include the Traditional Knowledge Code of Practice and the Traditional Knowledge Guidelines.[97] There are also other expected standards of conduct such as the Queensland Biotechnology Code of Ethics.[98]
Where traditional knowledge is associated with the ‘native biological resources’ then specific provisions apply very broadly to any ‘person who accesses traditional knowledge when engaging in biodiscovery or preparing to engage in biodiscovery’ irrespective of their jurisdiction.[99] The effect of these provisions is to expand the reach of the scheme such that the obligations apply to any kind of biological organism, and parts, components and information about that organism collected anywhere in Queensland’s jurisdiction, including privately held lands and lands of Indigenous Peoples, but not to materials provided with a Plant Treaty standard material transfer agreement.[100] This is then subject to criminal sanctions and penalties known as the ‘traditional knowledge obligation’:[101] ‘The person must take all reasonable and practical measures to ensure the person does not use the traditional knowledge for biodiscovery other than under an agreement with the custodians of the knowledge.’[102]
The sanctions and penalties can be avoided by complying with the traditional knowledge obligation by adhering to ‘the traditional knowledge code of practice’ or being a person who ‘is employed or engaged by a biodiscovery entity that has complied with the traditional knowledge code of practice’.[103] The critical point is the definition of ‘traditional knowledge’. The Biodiscovery Act does not define ‘traditional knowledge’ and the Traditional Knowledge Code of Practice provides ‘[u]nder the Biodiscovery Act 2004, traditional knowledge means information based on Aboriginal tradition or Island custom’.[104] This meaning is clarified by the Acts Interpretation Act 1954 (Qld) that provides a definition for ‘Aboriginal people’[105] and ‘Torres Strait Islander’[106] and their associated traditions respectively:
(a) Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.[107]
(b) Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships.[108]
The key point here for ‘traditional knowledge’ is the terminology ‘relating to particular persons, areas, objects or relationships’. Any assumptions under the Biodiscovery Act that there is a distinction between nature and society and so something in nature (like a leaf of a tree) is taken out of nature and brought into society and then regulated in society is challenged. Indigenous Peoples may not have this nature and society conception. They may have a range of cosmologies and might, for example in some Australian contexts, make no distinction between nature and society so that all nature is ‘Aboriginal tradition’ or ‘Ailan Kastom’ (perhaps like that ‘taro’ is ‘my ancestor’).[109] This would mean that for Indigenous Peoples according to their body of customs, traditions, observances and beliefs any ‘native biological material’ under the Biodiscovery Act can be an ‘Aboriginal tradition’ or ‘Ailan Kastom’ and so subject to the ‘traditional knowledge’ requirements of the Biodiscovery Act. The effect of these definitions is that the Acts Interpretation Act 1954 (Qld) imposes an obligation into the Biodiscovery Act for Indigenous Peoples to determine their ‘Aboriginal tradition’ or ‘Ailan Kastom’ that will be ‘traditional knowledge’ for the purposes of the Biodiscovery Act. As a matter of practice, this means that any proposed collector of any ‘native biological resource’ will need to comply with the Traditional Knowledge Code of Practice as it is for Indigenous Peoples to determine what is and is not traditional knowledge. As a measure of the possibly extensive scope of these concepts, the following guidance about the range of Australian Indigenous Peoples’ culture and intellectual property illustrates that ‘traditional knowledge’ may be understood as a system with both tangible and intangible elements, rather than only separate intangible information and knowledge per se:
‘Indigenous Culture and Intellectual Property’ ... consists of the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems that have been developed, nurtured and refined (and continue to be developed, nurtured and refined) by Indigenous People and passed on by Indigenous People as part of expressing their cultural identity, including:
• Literary, performing and artistic works (including music, dance, song, ceremonies, symbols and designs, narratives and poetry);
• Languages;
• Scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and sustainable use of flora and fauna);
• Spiritual knowledge;
• All items of moveable cultural property, including burial artefacts;
• Indigenous ancestral remains;
• Indigenous human genetic material (including DNA and tissues);
• Cultural environment resources (including minerals and species);
• Immovable cultural property (including Indigenous sites of significance, sacred sites and burials); and
• Documentation of Indigenous Peoples heritage in all forms of media (including scientific, ethnographic research reports, papers and books, films, sound recordings).[110]
Therefore, all tangible and intangible ‘native biological resources’ in Queensland may be deemed to be ‘traditional knowledge’ by a community or holder and therefore subject to the Biodiscovery Act ‘traditional knowledge’ requirements. The ‘traditional knowledge’ requirements apply to all of Queensland, not just state lands and waters, and potentially apply to any biological materials from anywhere subjected to ‘biodiscovery’.[111] This is provided that the relevant Indigenous People extend their customs, traditions, observances and beliefs to that biological thing, in whatever manner, including landscapes and what comprises that landscape. ‘For [I]ndigenous [P]eople the natural samples being extracted from biodiverse regions are not natural products, but products of the remaking of Country. They are part of the benefits of their innovation systems.’[112] Under the Biodiscovery Act, it is for Indigenous Peoples to determine the culture and heritage values of biological materials and this almost certainly includes any genetic resources collected in Queensland.[113] Put very simply, genetic resources are traditional knowledge per se if Indigenous Peoples in Queensland so determine (and they have in some instances already made this determination).[114] Further, this obligation under the Biodiscovery Act is triggered by access and use of the traditional knowledge irrespective of when the biological material was collected and will also apply to any existing materials within ex situ collections where they are used for biodiscovery irrespective of when they were collected.[115]
This analysis shows that Queensland’s Biodiscovery Act requirements apply more broadly to resources, knowledge and information as the subject matter of ABS laws. The implications for repatriation of genetic resources as culture and heritage have not yet been demonstrated in practice. However, there is clearly scope for policymakers to employ more flexible tools for genetic resources over which Indigenous Peoples have established rights to grant access in accordance with customary law and to ascertain the implications this might have for repatriation.[116] As the analysis in this article shows, this means that if genetic resources are traditional knowledge per se, then the CBD’s (and Nagoya Protocol’s) ABS transaction framework will apply as well as the other CBD benefit sharing provisions, and these can address repatriation.
In less formal commitments acknowledged by the Nagoya Protocol,[117] there are already some repatriation arrangements under biocultural protocols in some jurisdictions demonstrating the kinds of considerations that might be relevant.[118] These are becoming more common as part of, or supplementary to, ABS measures. For example, five Andean communities have agreed to a biocultural protocol concerning indigenous potato genetic resources in a region called the ‘Potato Park’, which sets out a range of measures concerning ABS procedures for accessing, using and sharing the benefits of genetic resources (and associated traditional knowledge) to which they have an established right to grant access.[119] These measures include a requirement to incorporate in an agreement the repatriation of, and reciprocal access to, potato varieties with gene banks.[120] This approach is reinforced through the Rutzolijirisaxik Voluntary Guidelines broadly cast to ‘apply to the knowledge, innovations and practices of [I]ndigenous [P]eoples and local communities, relevant for the conservation and sustainable use of biological diversity’[121] and then sets out the guiding principles for repatriation with ‘respect’ for ‘the values, practices, world views, customary laws, community protocols’ and so on.[122] There are also some common approaches under national ABS laws that may have the effect of repatriating resources, information and knowledge, regardless of whether the measures treat genetic resources as property or as culture and heritage, such as:
· the Ugandan requirement to report the results from research (periodic or final reports);[123]
· the Kenyan and Malaysian requirements to submit duplicate samples of the collected samples and records of intangible components with the provider country;[124]
· the Philippines’ confiscation of materials for non-compliance with authorisations or contracts;[125] and
· the Ugandan requirement for participation of Ugandan citizens and institutions in research, development, management and utilisation of genetic resources.[126]
There may also be national schemes that are complementary to the ABS legislation with relevant repatriation obligations that might be relied upon for an alternative means of benefit sharing. For example, in Australia, the Strehlow Research Centre Act 2005 (NT) provides for repatriation of ‘objects of cultural, historical and anthropological significance’ held by the centre by establishing a Board with the function ‘to consider requests for the repatriation of objects from the collections to their traditional owners’.[127] There are also non-legislative administrative and policy schemes being implemented, especially by museums and other collecting institutions seeking to manage their improperly acquired, looted, smuggled and so on, collections.[128]
The next section outlines the international framework for culture and heritage and their potential relevance for repatriation of the subject matter of ABS to consider which frameworks more effectively manage biological culture and heritage and specifically address the repatriation question. The analysis reveals that it is really only the relatively recently concluded UNDRIP that deals with genetic resources, culture and heritage and repatriation in the context of Indigenous Peoples.
While the CBD and Nagoya Protocol have a direct application to biological and genetic resources and traditional knowledge, there are other legal frameworks that apply to culture and heritage more broadly.[129] This is often achieved by linking the cultural objects to the heritage laws of nation-states through a system of ‘national treasures’. In this analysis, the distinction between a privately owned object that is traded and subject to international multilateral agreements disciplining international trade and domestic trade-related measures must be distinguished from the claims that an object has a broader appeal to heritage, often identified as the ‘national treasure’ exception in trade law.
The World Trade Organization’s General Agreement on Tariffs and Trade 1994 (‘GATT 1994’) limits any ‘prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures’ on importing and exporting products for sale.[130] The GATT 1994 adopted the General Agreement on Tariffs and Trade (‘GATT 1947’) that had provided, as a general exception, measures ‘imposed for the protection of national treasures of artistic, historic or archaeological value’, subject to the requirement ‘that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination’.[131] The scope and meaning of the term ‘national treasure’ has never been adjudicated[132] and will likely be adjudicated stringently,[133] although it seems probable that this would consider the particular circumstances of each domestic measure[134] and be read in light of contemporary concerns.[135] The chapeau to this provision identifies the trade ills of arbitrary or unjustifiable discrimination and disguised restriction, but once these have been passed, the text leaves open a very broad potential of ‘national treasures’ having ‘artistic’, ‘historic’ or ‘archaeological’ value.[136] Perhaps the biggest hurdle is arguing that genetic resources can have the values of ‘national treasures’ as this provision has usually been addressed in the context of artistic cultural objects like paintings even though there remains uncertainty about its scope.[137] As a matter of practice, however, this is unlikely to be a significant limitation as export restrictions to protect a nation-state’s national treasures are unlikely to raise concerns with other WTO members, unless there is some dispute about the treasure’s origins.[138] Import restrictions for other states’ ‘national treasures’ are potentially more problematic.[139] While the exception remains uncertain, there is an assumption that the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (‘1970 UNESCO Convention’) is consistent with the GATT 1994 exception[140] and will apply to culture and heritage objects.[141]
The 1970 UNESCO Convention defines ‘cultural property’ to mean ‘property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories: (a) ... specimens of fauna [and] flora’.[142] The cultural property of the state will then be ‘cultural property created by the individual or collective genius of nationals of the state concerned, and cultural property of importance to the state concerned created within the territory of that state by foreign nationals or stateless persons resident within such territory’, ‘cultural property found within the national territory’ and ‘cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property’.[143] The nation-state parties undertook to introduce appropriate certification of cultural property,[144] prohibit the export of cultural property,[145] prevent museums and like institutions acquiring others’ cultural property,[146] prohibit the import of stolen cultural property,[147] and recover and return stolen cultural property or pay ‘just compensation’.[148]
The 1970 UNESCO Convention only applies once a nation-state becomes a party and will have an effect only if both nation-states (the country of origin and the other country that imports, exports and transfers ownership of cultural property) are parties[149] and both have implemented domestic laws giving effect to the Convention.[150] The Australian implementation in the Protection of Movable Cultural Heritage Act 1986 (Cth)[151] illustrates how this might be operationalised for plants and animals. This legislation establishes a list of objects constituting ‘movable cultural heritage of Australia’ that may be subject to export control.[152] These include objects that are important to Australia for ‘scientific or technological reasons’ that have been recovered from within the Australian jurisdiction like the soil or inland waters.[153]
The legislation also provides that a ‘protected object of a foreign country’ that is exported from that country and imported into Australia ‘is liable to forfeiture’.[154] The machinery of the legislation is to establish a National Cultural Heritage Committee[155] that advises the Minister on the objects that should be included in, or removed from, the Control List.[156] The National Cultural Heritage Control List sets out categories of objects that constitute movable cultural heritage and that are subject to export controls: Class A objects, which cannot be exported except with a certificate; and Class B objects, which can only be exported in accordance with either a permit or certificate.[157] Within these lists, protected objects include ‘an object ... of cultural significance to Aboriginal or Torres Strait Islander people’,[158] ‘biological or ethnographic objects or collections’,[159] ‘any type specimen of present‑day flora or fauna’,[160] and so on. With a certificate[161] or a permit[162] an object can be imported and exported.[163] This illustrates that it is for the nation-state through its domestic laws to designate the biological material as cultural or heritage value, and only if the other nation-state has joined will there be any obligations once imported and exported.
To address some of the concerns about the limited reach of national laws, the International Institute for the Unification of Private Law (‘UNIDROIT’) Convention on Stolen or Illegally Exported Cultural Objects sets out minimum legal standards for the return of stolen and illegally exported cultural objects.[164] Under the Convention ‘cultural objects’ means ‘objects ... which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science ... [including] specimens of fauna, flora’.[165] Stolen and illegally exported objects must be returned[166] and compensation may be payable to the possessor of the object required to make the return.[167] In making these decisions the laws of the country of origin are relevant in determining stealing and illegality.[168] The main limitation of this agreement was that it only applies to objects stolen or illegally exported after the agreement entered into force (1 July 1998)[169] and there are only 54 contracting nation-states.[170]
There are a range of other similar agreements like UNESCO’s Convention concerning the Protection of World Cultural and Natural Heritage (1972)[171] and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003).[172] All these articulations of treaty obligations about property, and culture and heritage involve definitions and provisions that are essentially secularised and scientific, and do not necessarily capture the essence of a different cosmological understanding of law and lore that might be relevant for Indigenous Peoples and local communities.[173] Nor do they specifically address repatriation and how that might be achieved.[174] An earlier instrument directly addressing repatriation, however, was the Mataatua Declaration on Culture and Intellectual Property Rights of Indigenous Peoples (‘Mataatua Declaration’) in 1993, where Indigenous Peoples from Japan, Australia, the Cook Islands, Fiji, India, Panama, Peru, the Philippines, Suriname, the US and New Zealand met and declared:
2.12 All human remains and burial objects of Indigenous Peoples held by museums and other institutions must be returned to their traditional areas in a culturally appropriate manner.
2.13 Museums and other institutions must provide, to the country and Indigenous Peoples concerned, an inventory of any indigenous cultural objects still held in their possession.
2.14 Indigenous cultural objects held in museums and other institutions must be offered back to their traditional owners.[175]
The clear obligations here were to determine an inventory of objects and return any human remains and burial objects and offer back cultural objects. Importantly, the recommendations were that Indigenous People ‘[d]efine for themselves their own intellectual and cultural property’,[176] and that ‘[I]ndigenous [P]eoples are the guardians of their customary knowledge and have the right to protect and control dissemination of that knowledge’.[177] There was, however, a distinction between the cultural and intellectual property rights and customary and environmental management (including over flora and fauna) being addressed in separate recommendations,[178] and a further and separate treatment of cultural objects.[179] This does not necessarily mean that indigenous flora and fauna on the territories of Indigenous communities are not cultural property (or cultural heritage) and might be considered within the broader ambit of intellectual property. As such, the Mataatua Declaration is a clear indication that genetic resources are within the ambit of Indigenous Peoples’ imaginations, and while not a clear expression of repatriation, cultural objects must, at least, be offered back to ‘traditional owners’.[180]
A more relevant and recent articulation of culture and heritage and repatriation in the context of Indigenous Peoples is UNDRIP.[181] UNDRIP provides:
1 Indigenous [P]eoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
2 States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with [I]ndigenous [P]eoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.[182]
The UNDRIP then provides specifically for a ‘right to repatriation’ for ‘human remains’ and a ‘right to the use and control’ of ‘ceremonial objects’,[183] and that nation-states ‘enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with [I]ndigenous [P]eoples concerned’.[184] The effect of UNDRIP is to deal with three categories of cultural heritage: human remains; ceremonial objects; and tangible artefacts and intangible (non-material) culture and heritage. The mandatory obligations apply to repatriating human remains,[185] use and control of ceremonial objects,[186] the practice and revitalising of the other artefacts, and restitution (returns to individual or communities) where this has been taken without ‘free, prior and informed consent or in violation of their laws, traditions and customs’.[187]
The subject matter of the three categories is essentially for Indigenous Peoples to determine and can clearly include genetic resources and knowledge and information about those materials where there is some property, culture or heritage connection. UNDRIP provides that ‘[i]n conjunction with [I]ndigenous [P]eoples, [nation] states shall take effective measures to recognize and protect the exercise of’[188]
the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, 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, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.[189]
The effect of UNDRIP is recognition that ‘genetic resources, seeds, medicines, knowledge of the properties of fauna and flora’ are essential elements of a lived culture and that the distinction between nature and culture is illusory.[190] Further, UNDRIP asserts a right to redress developed in conjunction with Indigenous Peoples[191] that will include considerations of compensation.
The question addressed by this article is whether genetic resources could be property as well as culture and heritage per se, and whether there is an obligation to repatriate genetic resources. The survey shows that the CBD and Nagoya Protocol appear to distinguish the property of genetic resources and their culture and heritage values, with two distinct applications — an ABS transactional framework and a broader benefit sharing framework. The Biodiscovery Act demonstrates that implementing these obligations in domestic law can accommodate genetic resources as embodying resources, information and knowledge as one and that the Rutzolijirisaxik Voluntary Guidelines address repatriation in a way that might embrace genetic resources and the substance of how repatriation might be done. While the review of the various culture and heritage frameworks provide some useful insights, they do not directly assist, and it is really only UNDRIP that provides clear guidance with the ‘the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions’[192] and the right to restitution[193] (and compensation).[194] The analysis in this article clearly shows that the CBD and Nagoya Protocol in combination with UNDRIP perhaps provide a better framework for dealing with biological culture and heritage and specifically addressing the repatriation question. This is a better framework because UNDRIP applies directly to culture and heritage and genetic resources, and sets out clear obligations that are consistent with the CBD and Nagoya Protocol. Compared to the other culture and heritage frameworks, this specificity in the UNDRIP reflects its time (2007) and takes into account:
· the advances addressing the specific concerns of Indigenous Peoples after the CBD entered into force (29 December 1993);[195]
· the then concurrent Nagoya Protocol negotiations dealing with Traditional Knowledge (2000–10);[196]
· the agreement of the Tkarihwaié:ri Code of Ethical Conduct addressing repatriation as a specific consideration in respecting the cultural and intellectual heritage of Indigenous Peoples;[197] and
· intellectual heritage of Indigenous Peoples and the early negotiation stages of what were to become the Rutzolijirisaxik Voluntary Guidelines.[198]
Put simply, the CBD and Nagoya Protocol are amenable to dealing with repatriation and it is for the nation-states to take this up in their domestic laws.
For genetic resources this repatriation is likely to be a considerable exercise as the global exchange (through looting, smuggling and trade) has been extensive and resolving the various past, present and future claims will be challenging. While there are many examples of successful claims and repatriations,[199] this remains contested[200] and there are increasingly many international organisations, human rights bodies, non-governmental organisations, professional associations, museums, art galleries, cultural institutions and so on producing codes, resolutions, declarations, guidelines and other norm-setting activities about the culture and heritage objects and repatriation of various physical objects, knowledge and information.[201] Important recent advances have been the engagement of Indigenous Peoples in these matters[202] and addressing the problems of legal pluralism,[203] with the Biodiscovery Act providing an immediate example of empowering Indigenous Peoples to determine their engagement (or not) with the dominant legal frameworks.
There are also some further advantages for dealing with genetic resources as traditional knowledge per se and an alternative to the current malaise over benefit sharing.[204] Determining the origin of the genetic resources, information and traditional knowledge is crucial for ascertaining which provider is entitled to prior informed consent, a share of the benefits from their use and any possible repatriation. The CBD provides that the genetic resources being provided for the purposes of ABS,[205] access to and transfer of technology,[206] and the handling of biotechnology and distribution of its benefits[207] ‘are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this [CBD]’.[208] The origin benchmark does not similarly apply to the CBD’s exchange and repatriation of information obligations.[209] There is a distinction between genetic resources within the ABS transaction and general obligations promoting[210] the disclosure and exchange of information about genetic resources subject to some intellectual property restrictions.[211] The idea is that traceability infrastructure under ABS measures[212] should be able to trace the origin of genetic resources and derivatives that are used in research, development and commercialisation to ensure benefits flow back to the provider if they have a benefit sharing contract (and close the ABS transaction). On the other hand, any publicly available information about those resources, the results of research, specialised knowledge, indigenous and traditional knowledge alone and in combination with biotechnologies that incorporate them, should remain publicly available and, where feasible, be repatriated.[213]
Tracing origin is challenging because many countries have not implemented ABS measures and those that have vary significantly in their geographical scope[214] and traceability infrastructure, which creates loopholes in the chain of custody and undermines benefit sharing.[215] The under-explored obligation of repatriation may be another avenue for countries to receive benefits from at least the use of their communities’ information and knowledge, without having to negotiate benefit sharing agreements and without the need for complex traceability regimes. If Indigenous Peoples and local communities or countries can argue that genetic resources, information and knowledge are inextricably linked as culture and heritage, then this avenue has potentially even wider application as an alternative or supplementary approach to meaningful benefit sharing.
The idea of repatriation also has the potential to sidestep the debate about temporal scope of ABS, which causes uncertainty for users — particularly in relation to whether new and continuing uses of previously accessed genetic resources fall within scope. The CBD entered into force on 29 December 1993[216] and was presumed not to apply to genetic resources accessed before this date.[217] The Nagoya Protocol entered into force on 12 October 2014.[218] It arguably applies to all ‘genetic resources’ and ‘derivatives’ irrespective of starting date because the trigger for its application is the ‘utilization of such resources’[219] and not necessarily the date of entry into force of the Nagoya Protocol.[220] Regardless of the debate about whether international agreements cover genetic resources acquired prior to their entry into force,[221] whether resources, information or knowledge are subject to ABS will hinge on the temporal scope of national law rather than international texts. As the analysis of the Biodiscovery Act shows, where the resources are framed as culture and heritage (so traditional knowledge) these temporal limits will not apply and new and continuing uses of previously accessed materials would clearly be subject to benefit sharing and repatriation, with the Rutzolijirisaxik Voluntary Guidelines providing useful procedures and guiding principles about how this might be operationalised.
The CBD and Nagoya Protocol obligations are silent about how to achieve repatriation in practice. How can the biological resource be returned to the provider after it has been used and exhausted? Arguably, the repatriation obligations apply ostensibly to (traditional) knowledge and information as intangible resources, because such forms cannot be exhausted with use. However, there may be cases where it is practical to repatriate the physical form. Other questions relate to the extent to which a finished product incorporating the resource, knowledge or information is deemed to be based on or incorporating the original resource/knowledge. These are questions that plague traceability for the purpose of benefit sharing under ABS and infringement of genetic resource inventions under intellectual property law.[222] Arguably, these questions fall into the trap of making artificial distinctions that may become less relevant when the resources, knowledge and information are treated as culture and heritage, as the approaches to cultural heritage laws indicate. Again, the Rutzolijirisaxik Voluntary Guidelines provide useful directions about how this might be operationalised.
This review of the CBD and Nagoya Protocol and accompanying guidelines indicate that ABS obligations over genetic resources can be interpreted not just as property but as culture and heritage per se, without the need for the artificial and fictional separation of physical resources, knowledge and information. This has implications for a deeper understanding of what repatriation could mean in the context of benefit sharing. While the only overt repatriation obligation concerns the return of information and traditional knowledge to the provider country, the interpretation of genetic resources as culture and heritage could expand repatriation obligations. This is a promising and under-explored means of achieving benefit sharing for Indigenous Peoples and local communities, which sidesteps the challenges plaguing effective implementation of ABS objectives.
* Law Futures Centre, Griffith University, Parklands, Queensland, Australia 4222. ORCID ID: 0000-0003-0253-026X. Email: c.lawson@griffith.edu.au.
† Law Futures Centre, Griffith University, Nathan, Queensland, Australia 4[1]11. ORCID ID: 0000-0002-5476-4669. Email: fran.humphries@griffith.edu.au.
‡ Law Futures Centre, Griffith University, Nathan, Queensland, Australia 4[1]11. ORCID ID: 0000-0003-1560-8943. Email: m.rourke@griffith.edu.au.
[1] For applications of these frameworks to biological materials, see Charles Lawson, Regulating Genetic Resources: Access and Benefit Sharing in International Law (Edward Elgar, 2012) 24–54 (Antarctica), 55–90 (outer space and the Moon), 91–124 (seas and oceans), 181–217 (plant genetic resources for food and agriculture).
[2] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) (‘CBD’).
[3] 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, opened for signature 29 October 2010, 3008 UNTS 3 (entered into force 12 October 2014) (‘Nagoya Protocol’).
[5] This recognises that among the members of the United Nations, there is a pact based on the principle of the sovereign equality of all its members: see Charter of the United Nations arts 2–4.
[6] The CBD now considers that the phrase ‘indigenous and local communities’ in the text of the CBD (art 8(j)) should be read as ‘Indigenous Peoples and local communities’: Report of the Eighth Meeting of the Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity, 12th mtg, Provisional Agenda Item 8, UN Doc UNEP/CBD/COP/12/5 (11 November 2013) 36, Recommendation 8/6. This posits a difference between the identities of ‘Indigenous Peoples’ and ‘local communities’: see Todd Berry and Charles Lawson, ‘“Local Communities” and Traditional Knowledge at WIPO: A Very Broad Application?’ (2018) 40(8) European Intellectual Property Review 485, 486–7. See also Fran Humphries et al, ‘Survey of Access and Benefit-Sharing Country Measures Accommodating the Distinctive Features of Genetic Resources for Food and Agriculture and Associated Traditional Knowledge’ (Background Study Paper No 70, Food and Agriculture Organisation of the United Nations, 2021) x, 26–7 (‘Survey of Access and Benefit-Sharing Country Measures’).
[8] Ibid art 10(c).
[9] Nagoya Protocol (n 3) art 7.
[10] CBD (n 2) art 1; ibid arts 1, 3.
[11] Notably the CBD distinguishes between ‘natural habitats’, ‘biological diversity’, ‘natural resources’, ‘biological resources’ and ‘genetic resources’: see CBD (n 2) Preamble, arts 2, 8(d), 9(c)–(d) regarding ‘natural habitats’; at Preamble, arts 1, 2, 4(a), 5, 6(a)–(b), 7(a)–(c), 8(a)–(c), 8(g), 8(i)–(j), 8(l), 9(a), 10(b), 10(d), 11, 12(a)–(c), 13(a)–(b), 14(1)(a)–(e), 14(2), 16(1), 17(1), 18(1), 19(3), 20(6), 21(4), 22(1), 23(4)(b), 23(5), 25(2)(a), 25(2)(c)–(d), annex I regarding ‘biological diversity’; at art 15(1) regarding ‘natural resources’; at Preamble, arts 2, 8(c), 9(d), 10(a)–(c), 10(e), 12(c) regarding ‘biological resources’; at Preamble, arts 1, 2, 9(b), 15(1)–(7), 16(1), 16(3), 19(1)–(2) regarding ‘genetic resources’. Framed in the CBD, ‘genetic resources’ are a subset of ‘biological resources’ and in their turn ‘biological resources’ are a subset of ‘natural resources’: at arts 2, 15(1).
[12] CBD (n 2) art 15; Nagoya Protocol (n 3) arts 5–6.
[13] CBD (n 2) art 2. See also Report of the Meeting of the Group of Legal and Technical Experts on Concepts, Terms, Working Definitions and Sectoral Approaches, 7th mtg, Provisional Agenda Item 3, UN Doc UNEP/CBD/WG-ABS/7/2 (12 December 2008) annex, 6 [3].
[14] See Peter Johan Schei and Morten Walløe Tvedt, The Concept of ‘Genetic Resources’ in the Convention on Biological Diversity and How It Relates to a Functional International Regime on Access and Benefit Sharing, 9th mtg, UN Doc UNEP/CBD/WG-ABS/9/INF/1 (19 March 2010) 31–3. See also Access to Genetic Resources, 3rd mtg, UN Doc UNEP/CBD/COP/3/20 (5 October 1996) [35]–[37].
[15] Margo Bagley et al, Fact-Finding Study on How Domestic Measures Address Benefit-Sharing Arising from Commercial and Non-Commercial Use of Digital Sequence Information on Genetic Resources and Address the Use of Digital Sequence Information on Genetic Resources for Research and Development, UN Doc CBD/DSI/AHTEG/2020/1/5 (29 January 2020) 13–16.
[16] Nagoya Protocol (n 3) Preamble, art 6.
[17] Ibid arts 13 (‘focal points’), 17 (‘checkpoints’ and compliance certificates).
[18] Ibid art 7.
[19] CBD (n 2) arts 2 (definition of ‘genetic material’, definition of ‘genetic resources’), 15(1) (definition of ‘natural resources’); at arts 5 (‘fair and equitable benefit sharing’), 6 (‘access to genetic resources’). Notably, ‘digital sequence information’ is currently under debate addressing the intangible aspects of ‘genetic resources’: see, eg, Digital Sequence Information on Genetic Resources, 3rd mtg, Provisional Agenda Item 5, UN Doc CBD/WG2020/3/4 (5 July 2021).
[20] See CBD (n 2) art 8(j) (‘knowledge, innovation and practices’); Nagoya Protocol (n 3) arts 7, 12 (‘traditional knowledge associated with genetic resources’).
[21] Noting, of course, that humans were never ‘modern’ because the modernist distinction between nature and culture never existed: Bruno Latour, We Have Never Been Modern, tr Catherine Porter (Harvard University Press, 1993) 142–5.
[23] Ibid art 10(c).
[24] Ibid art 15(5); Nagoya Protocol (n 3) art 6(1).
[25] CBD (n 2) art 15(4); Nagoya Protocol (n 3) art 5(2).
[26] CBD (n 2) art 15(7); Nagoya Protocol (n 3) arts 5(1), 5(4), 6(1), annex.
[28] Ibid art 2.
[29] Nagoya Protocol (n 3) arts 5(1), 6(1).
[30] Ibid art 7.
[31] Ibid arts 5(5), 7, 12(1).
[32] There is a huge literature about the history of modern science, and for a short overview contemporaneous with the CBD: see, eg, Andrew Cunningham and Perry Williams, ‘De-Centring the “Big Picture”: The Origins of Modern Science and the Modern Origins of Science’ (1993) 26(4) British Journal for the History of Science 407.
[33] See also Ludovic Coupaye, Growing Artefacts, Displaying Relationships: Yams, Art and Technology amongst the Nyamikum Abelam of Papua New Guinea (Berghahn Books, 2013).
[34] Karolina Kuprecht, Indigenous Peoples’ Cultural Property Claims: Repatriation and Beyond (Springer, 2014) 41.
[35] CBD (n 2) art 15(7); Nagoya Protocol (n 3) art 5(1).
[36] Report of the Conference of the Parties to the Convention on Biological Diversity on Its Fourteenth Meeting, 14th mtg, UN Doc CBD/COP/14/14 (20 March 2019) 141 [9] (‘Rutzolijirisaxik Voluntary Guidelines’). See also Report of the Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity, 10th mtg, UN Doc UNEP/CBD/COP/10/27 (20 January 2011) annex, 317 [23] (‘Tkarihwaié:ri Code of Ethical Conduct’).
[37] The Biodiscovery Act 2004 (Qld) (‘Biodiscovery Act’) was chosen because it appears to provide the most extensive rights to Indigenous Peoples (but not local communities) in domestic measures currently implementing the interests of Indigenous Peoples under the CBD and Nagoya Protocol.
[38] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, 61st sess, 107th plen mtg, Agenda Item 68, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) (‘UNDRIP’).
[39] See ‘List of Parties’, Convention on Biological Diversity (Web Page) <https://www.cbd.int/information/parties.shtml>, archived at <https://perma.cc/J52X-SFG7>.
[40] See ‘Parties to the Nagoya Protocol’, Convention on Biological Diversity (Web Page) <https://www.cbd.int/abs/nagoya-protocol/signatories>, archived at <https://perma.cc/5RMS-2T9C>.
[41] See, eg, Humphries et al, ‘Survey of Access and Benefit-Sharing Country Measures’ (n 6).
[42] See Tomme Rosanne Young and Morten Walløe Tvedt, Drafting Successful Access and Benefit-Sharing Contracts (Brill Nijhoff, 2017).
[43] For example, the Australian State of Victoria has a patchwork of laws and policies addressing accessing genetic resources but no dedicated ABS law: see Charles Lawson, Fran Humphries and Michelle Rourke, ‘Legislative, Administrative and Policy Approaches to Access and Benefit Sharing (‘ABS’) Genetic Resources: Digital Sequence Information (‘DSI’) in New Zealand and Australian ABS Laws’ (2019) 118 Intellectual Property Forum 38, 44–5.
[44] For example, Australia only applies its Commonwealth ABS laws to ‘Commonwealth areas’: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 525 (‘Environment Protection and Biodiversity Conservation Act’).
[45] See Schei and Tvedt, UN Doc UNEP/CBD/WG-ABS/9/INF/1 (n 14) 17.
[46] Nagoya Protocol (n 3) art 2(e).
[47] CBD (n 2) arts 8(j), 10(c).
[48] See Nagoya Protocol (n 3) arts 6(2), 7, 12.
[49] Ibid art 7.
[50] Ibid.
[51] Ibid.
[52] See, eg, Humphries et al, ‘Survey of Access and Benefit-Sharing Country Measures’ (n 6) 26–8.
[53] Nagoya Protocol (n 3) art 12(1).
[54] Ibid art 12(4).
[55] Ibid art 7.
[56] The 1991 CBD negotiations concluded in Report of the Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity on the Work of its Second Session, 2nd sess, UN Doc UNEP/Bio.Div/WG.2/2/5 (7 March 1991) 13 [64]:
[T]he scope of access to biological diversity should include genetic materials, both in situ and ex situ, from both wild and domestic species, from both terrestrial and non-terrestrial species, and from both within and beyond national jurisdiction, including international areas. It also included direct physical access to biological diversity as well as indirect access, eg access to information.
[57] See CBD (n 2) art 17. See also Charles Lawson, Fran Humphries and Michelle Rourke, ‘The Future of Information under the CBD, Nagoya Protocol, Plant Treaty and PIP Framework’ (2019) 22(3–4) Journal of World Intellectual Property 103, 107–8, 111–12.
[58] See Nagoya Protocol (n 3) art 14.
[59] CBD (n 2) arts 15(7), 16(5).
[60] A placeholder term for the ideal that information in or about a genetic resource should be captured by the benefit sharing requirement to maintain the integrity of the CBD and Nagoya Protocol’s ABS arrangements: see Sarah A Laird and Rachel P Wynberg, Fact-Finding and Scoping Study on Digital Sequence Information on Genetic Resources in the Context of the Convention on Biological Diversity and the Nagoya Protocol, UN Doc CBD/DSI/AHTEG/2018/1/3 (12 January 2018).
[61] See, eg, Digital Sequence Information on Genetic Resources, UN Doc CBD/WG2020/3/4 (n 19).
[62] See Margo Bagley et al, UN Doc CBD/DSI/AHTEG/2020/1/5 (n 15) annex, 13–16.
[63] Nagoya Protocol (n 3) art 5(1).
[64] Ibid.
[65] Ibid arts 5(2), 5(5).
[66] Ibid annex. See also Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, 6th mtg, UN Doc UNEP/CBD/COP/6/20 (27 May 2002) annex I, 267–9.
[67] See Fran Humphries, ‘Technology Transfer of Aquatic Genetic Resources under the Convention on Biological Diversity and Nagoya Protocol: “Sponging” off Patent Law Defences’ [2016] UNSWLawJl 7; (2016) 39(1) University of New South Wales Law Journal 234, 237–40, 269–72.
[69] This ‘publicly available’ threshold is likely a reference to the Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (‘Agreement on Trade-Related Aspects of Intellectual Property Rights’) art 39, addressing ‘undisclosed information’, ‘secret[s]’ and test data submitted to governmental authorities.
[70] CBD (n 2) arts 15(4)–(5); Nagoya Protocol (n 3) arts 5(1)–(2), 6(1)–(2).
[71] See CBD (n 2) art 15(4); Nagoya Protocol (n 3) arts 5(1)–(2), 6(1)–(2).
[73] Ibid art 2.
[74] Ibid arts 19(1)–(2).
[75] Report of the Fourth Meeting of the Conference of the Parties to the Convention on Biological Diversity, 4th mtg, UN Doc UNEP/CBD/COP/4/27 (15 June 1998) 111 [1].
[76] Report of the Fifth Meeting of the Conference of the Parties to the Convention on Biological Diversity, 5th mtg, UN Doc UNEP/CBD/COP/5/23 (22 June 2000) 140 [2], [9].
[77] Rutzolijirisaxik Voluntary Guidelines, UN Doc CBD/COP/14/14 (n 36) 138–49.
[78] Ibid 141 [9].
[79] Ibid.
[80] Ibid 142 [17(a)], [17(c)]. ‘Respect’ implies ‘respect for ... inter alia, the values, practices, world views, customary laws, community protocols, rights and interests of [I]ndigenous [P]eoples and local communities, consistent with international obligations and national circumstances’: at 142 [17(c)].
[81] Ibid 142 [17(g)]. See generally at 141–3 [17].
[82] Ibid 141 [16].
[83] Biodiscovery Act (n 37) s 4(5).
[84] Ibid s 10.
[85] Ibid s 5, sch (definition of ‘native biological material’).
[86] Ibid s 5, sch (definition of ‘native biological resource’).
[87] Ibid s 5, sch (definition of ‘biodiscovery’).
[88] Ibid s 5, sch (definition of ‘biodiscovery research’).
[89] Ibid s 5, sch (definition of ‘State land’). Another scheme applies to ‘Commonwealth areas’: Environment Protection and Biodiversity Conservation Act (n 44) s 301. This includes lands and waters owned and administered by the Commonwealth of Australia: at s 525.
[90] International Treaty on Plant Genetic Resources for Food and Agriculture, opened for signature 3 November 2001, 2400 UNTS 303 (entered into force 29 June 2004) (‘Plant Treaty’).
[91] Biodiscovery Act (n 37) s 7A.
[92] Ibid ss 10–11, 17. The collection of native biological material from public and private lands, waters and seas may also require other permits, such as a permit under the Nature Conservation Act 1992 (Qld), the Fisheries Act 1994 (Qld) or the Marine Parks Act 2004 (Qld).
[93] Biodiscovery Act (n 37) ss 34–5.
[94] Ibid s 4(4).
[95] Ibid s 9B(4).
[96] Ibid s 44. See Department of Environment and Science (Qld), Compliance Code: Taking Native Biological Material under a Collection Authority (Statutory Code, 2006).
[97] Biodiscovery Act (n 37) s 9C. See Department of Environment and Science (Qld), Traditional Knowledge Code of Practice (Code, 2021) (‘Traditional Knowledge Code of Practice’); Department of Environment and Science (Qld), Traditional Knowledge Guidelines (Guidelines, 2021) (‘Traditional Knowledge Guidelines’).
[98] Department of Environment and Science (Qld), Queensland Biotechnology Code of Ethics (Code, Interim Version, 2006).
[99] Biodiscovery Act (n 37) ss 9(1), 9A, 9B(1).
[100] Ibid s 7A(2). See Plant Treaty (n 90) art 12.4.
[101] Biodiscovery Act (n 37) ss 9B(2)–(3).
[102] Ibid s 9B(2).
[103] Ibid s 9B(4).
[104] Traditional Knowledge Code of Practice (n 97) 23.
[105] Acts Interpretation Act 1954 (Qld) s 36(1), sch 1 (definition of ‘Aboriginal people’).
[106] Ibid s 36(1), sch 1 (definition of ‘Torres Strait Islander’).
[107] Ibid s 36(1), sch 1 (definition of ‘Aboriginal tradition’).
[108] Ibid s 36(1), sch 1 (definition of ‘Island custom’).
[109] Daniel F Robinson, Confronting Biopiracy: Challenges, Cases and International Debates (Earthscan, 2010) 51. For an insight into this territorial cosmos that includes the total environment, see Peter Drahos, Intellectual Property, Indigenous People and Their Knowledge (Cambridge University Press, 2014) 31–52 and references therein. See also David S Jones and Philip A Clarke, ‘Aboriginal Culture and Food-Landscape Relationships in Australia: Indigenous Knowledge for Country and Landscape’ in Joshua Zeunert and Tim Waterman (eds), Routledge Handbook of Landscape and Food (Routledge, 2018) 41; Rosemary J Coombe, ‘Frontiers of Cultural Property in the Global South’ in Jane Anderson and Haidy Geismar (eds), The Routledge Companion to Cultural Property (Routledge, 2017) 373.
[110] Terri Janke, Our Culture: Our Future: Report on Australian Indigenous Culture and Intellectual Property Rights (Report, 1998) 11–12 (citations omitted).
[111] Biodiscovery Act (n 37) s 9A.
[112] Drahos (n 109) 148 (emphasis added). See, eg, R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, 356 (Brennan J): ‘Aboriginal traditions, observances, customs and beliefs applied in relation to sites and areas of land are different from non-Aboriginal traditions, observances, customs and beliefs.’ See also Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32, 35–43 [12]–[25].
[113] This appears to be the practice in Australia already: see, eg, Louis Evans et al, ‘Effective Intellectual Property Protection of Traditional Knowledge of Plants and Their Uses: An Example from Australia’ (2009) 74(5) GeoJournal 391, 391.
[114] See, eg, Gerry Turpin et al, ‘Aboriginal Medicinal Plants of Queensland: Ethnopharmacological Uses, Species Diversity, and Biodiscovery Pathways’ (2022) 18(1) Journal of Ethnobiology and Ethnomedicine 54:1–15; Sarah Holcombe and Terri Janke, ‘Patenting the Kakadu Plum and the Marjarla Tree: Biodiscovery, Intellectual Property and Indigenous Knowledge’ in Matthew Rimmer and Alison McLennan (eds), Intellectual Property and Emerging Technologies: The New Biology (Edward Elgar, 2012) 293.
[115] Biodiscovery Act (n 37) ss 9A–9B.
[116] Traditional Knowledge Code of Practice (n 97) 15–16; Traditional Knowledge Guidelines (n 97) 16–20.
[117] Nagoya Protocol (n 3) art 12(1).
[118] See, eg, Neil Carter, Joe Brown and Michael Pickering, ‘Cultural Protocols in Repatriation: Processes at the Kimberley Aboriginal Law and Culture Centre’ in Cressida Fforde, C Timonthy McKeown and Honor Keeler (eds), The Routledge Companion to Indigenous Repatriation: Return, Reconcile, Renew (Routledge, 2020) 583.
[119] Alejandro Argumedo, ‘Decolonising Action–Research: The Potato Park Biocultural Protocol for Benefit-Sharing’ (2012) 65 Participatory Learning and Action 91.
[120] Krishna Prasad Oli, ‘Access and Benefit Sharing from Biological Resources and Associated Traditional Knowledge in the HKH Region: Protecting Community Interests’ (2009) 1(5) International Journal of Biodiversity and Conservation 105, 114.
[121] Rutzolijirisaxik Voluntary Guidelines, UN Doc CBD/COP/14/14 (n 36) 141 [16].
[122] Ibid 142 [17(c)].
[123] National Environment (Access to Genetic Resources and Benefit Sharing) Regulations 2005 (Uganda) reg 15(2)(i) (‘National Environment Regulations’).
[124] Environmental, Management and Coordination Act (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations 2016 (Kenya) regs 18(2)(a)–(b); Access to Biological Resources and Benefit Sharing Act 2017 (Malaysia) sch 2, form 1.
[125] Joint DENR-DA-PCSD-NCIP Administrative Order No 01, Series of 2005 (Philippines) s 31.
[126] National Environment Regulations (n 123) reg 15(h).
[127] Strehlow Research Centre Act 2005 (NT) ss 6(a)–(b), 10(b).
[128] See generally Dan Hicks, The Brutish Museums: The Benin Bronzes, Colonial Violence and Cultural Restitution (Pluto Press, 2020).
[129] In Australia, for example, there is a disparate framework of laws with little uniformity between state, territory and Commonwealth legislation. The Commonwealth legislation includes the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), Aboriginal and Torres Strait Islander Act 2005 (Cth), Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth), National Museum of Australia Act 1980 (Cth), Protection of Movable Cultural Heritage Act 1986 (Cth) (‘Protection of Movable Cultural Heritage Act’) and so on. The Queensland state legislation includes the Queensland Museum Act 1970 (Qld) and the Queensland Heritage Act 1992 (Qld).
[130] Marrakesh Agreement Establishing the World Trade Organisation, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement on Tariffs and Trade 1994’) art XI(1) (‘GATT 1994’).
[131] General Agreement on Tariffs and Trade, opened for signature 30 October 1947, 55 UNTS 187 (entered into force 1 January 1948) art XX(f) (‘GATT 1947’).
[132] See, eg, Gabriele Gagliani, ‘Interpreting and Applying Article XX(f) of the GATT 1994: “National Treasures” in International Trade Law’ (2019) 5(2) Santander Art and Culture Law Review 35, 36.
[133] Tania Voon, ‘National Treasures at the Intersection between Cultural Heritage and International Trade Law’ in Franceso Francioni and Ana Filipa Vrdoljak (eds), The Oxford Handbook of International Cultural Heritage Law (Oxford University Press, 2020) 507, 517–18.
[134] See Appellate Body Report, United States — Standards for Reformulated and Conventional Gasoline, WTO Doc WT/DS2/AB/R (29 April 1996) 22.
[135] See Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc WT/DS58/AB/R (12 October 1998) [129].
[136] See, eg, Gagliani (n 132) 39–42.
[137] See, eg, ibid 46–51.
[139] Ibid 518–21.
[140] UNESCO, Operational Guidelines for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, UNESCO Doc C70/15/3.MSP/OperationalGuidelines/EN (1970) 48. See ibid 520–1.
[141] See Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, opened for signature 14 November 1970, 823 UNTS 231 (entered into force 24 April 1972) art 3 (‘1970 UNESCO Convention’). See also Gagliani (n 132) 46–51.
[142] 1970 UNESCO Convention (n 141) art 1(a).
[143] Ibid arts 4(a)–(c).
[144] Ibid art 6(a).
[145] Ibid art 6(b).
[146] Ibid art 7(a).
[147] Ibid art 7(b)(i).
[148] Ibid art 7(b)(ii).
[149] Ibid art 21.
[150] Ibid arts 5–8.
[151] See Shane Simpson, Borders of Culture: Review of the Protection of Movable Cultural Heritage Act 1986 (Final Report, 2015) 105 and references therein, noting that Australia adopted the 1970 UNESCO Convention in 1989 with the following reservation:
The Government of Australia declares that Australia is not at present in a position to oblige antique dealers, subject to penal or administrative sanctions, to maintain a register recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject. Australia therefore accepts the Convention subject to a reservation as to Article 10, to the extent that it is unable to comply with the obligations imposed by that Article.
[152] Protection of Movable Cultural Heritage Act (n 129) s 8(1).
[153] Ibid s 7(1).
[154] Ibid s 14(1).
[155] Ibid s 15.
[156] Ibid s 16(a)(ii).
[157] Ibid s 8; Protection of Movable Cultural Heritage Regulations 2018 (Cth) reg 7, sch 1 (‘Protection of Movable Cultural Heritage Regulations’).
[158] Protection of Movable Cultural Heritage Regulations (n 157) reg 7, sch 1 cl 1.2.
[159] Ibid reg 7, sch 1 cl 2.3(k).
[160] Ibid reg 7, sch 1 cl 3.4(h).
[161] Protection of Movable Cultural Heritage Act (n 129) s 12.
[162] Ibid s 11.
[163] Ibid s 9.
[164] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, opened for signature 24 June 1995, 2421 UNTS 457 (entered into force 1 July 1998) art 1.
[165] Ibid art 2, annex.
[166] Ibid art 3(1).
[167] Ibid arts 4(1), 6(1).
[168] See ibid arts 3(2), 5.
[169] Ibid arts 10(1)–(2), 12.
[170] ‘States Parties: UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)’, UNIDROIT (Web Page, August 2023) <https://www.unidroit.org/instruments/cultural-property/1995-convention/status/>, archived at <https://perma.cc/2BQW-JWH6>.
[171] Convention concerning the Protection of World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) (‘1972 UNESCO World Cultural and Natural Heritage Convention’).
[172] Convention for the Safeguarding of the Intangible Cultural Heritage, opened for signature 17 October 2003, 2368 UNTS 3 (entered into force 20 April 2006).
[173] For example, the definition of ‘sites’ under the 1972 UNESCO World Cultural and Natural Heritage Convention (n 171) conceives of humans as being separate from nature, and not part of nature, specifically ‘works of man or the combined works of nature and of man’: at art 1.
[174] For an analysis of human rights provisions applied to the cultural property and cultural heritage, see Kuprecht (n 34) 78–85.
[175] Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, UN Doc E/CN.4/Sub.2/AC.4/1993/CRP.5 (26 July 1993) arts 2.12–2.14 (‘Mataatua Declaration’).
[176] Ibid art 1.1.
[177] Ibid art 2.1.
[178] Cf ibid arts 2.1–2.5, 2.6–2.11.
[179] Ibid arts 2.12–2.14.
[180] Ibid art 2.14.
[181] A further relevant consideration is that UNDRIP (n 38) might become part of the movement towards a new international customary law such that the right to cultural identity, the right to adequate reparation and the right to redress for wrongs suffered are binding customary law: see, eg, S James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2nd ed, 2004) 61–72.
[183] Ibid art 12(1).
[184] Ibid art 12(2).
[185] Ibid art 12(1).
[186] Ibid.
[187] Ibid arts 11(1)–(2).
[188] Ibid art 31(2).
[189] Ibid art 31(1).
[190] Ibid.
[191] Ibid art 11(2).
[192] Ibid art 31(1).
[193] Ibid art 11(2).
[194] Ibid art 28(1).
[195] This included the ongoing work of the Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity: see, eg, Report of the Eighth Meeting of the Parties to the Convention on Biological Diversity, 8th mtg, UN Doc UNEP/CBD/COP/8/31 (15 June 2006) annex I, 139–58 (‘Working Group on Article 8(j) of the Convention on Biological Diversity Eighth Meeting Report’).
[196] For an overview, see Kimberly R Marion Suiseeya, ‘Negotiating the Nagoya Protocol: Indigenous Demands for Justice’ (2014) 14(3) Global Environmental Politics 102.
[197] Tkarihwaié:ri Code of Ethical Conduct (n 36) annex, 317 [23].
[198] See, eg, Working Group on Article 8(j) of the Convention on Biological Diversity Eighth Meeting Report (n 195) 142–3.
[199] For an example of repatriating potato genetic resources, see Stef De Haan, ‘Community-Based Conservation of Crop Genetic Resources’ in M Ehsan Dulloo (ed), Plant Genetic Resources: A Review of Current Research and Future Needs (Burleigh Dodds Science Publishing, 2021) 229, 235.
[200] For an overview, see generally Geoffrey Robertson, Who Owns History?: Elgin’s Loot and the Case for Returning Plundered Treasure (Knopf, 2019); Paige Williams, The Dinosaur Artist: Obsession, Betrayal, and the Quest for Earth’s Ultimate Trophy (Scribe Publications, 2018).
[201] See, eg, Department of Communications and the Arts (Cth), Australian Government Policy on Indigenous Repatriation (Policy, September 2016); Australian Museum, Repatriation Policy for Australian Aboriginal Secret/Sacred and Aboriginal Ancestral Remains Collections (Policy, 26 September 2007).
[202] See, eg, First Nations Information Governance Centre, ‘Pathways to First Nations’ Data and Information Sovereignty’ in Tahu Kukutai and John Taylor (eds), Indigenous Data Sovereignty: Toward an Agenda (ANU Press, 2016) 139.
[203] For an overview, see generally Ralf Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science 243.
[204] See, eg, Sarah Laird et al, ‘Rethink the Expansion of Access and Benefit Sharing’ (2020) 367(6483) Science 1200.
[206] Ibid art 16.
[207] Ibid art 19.
[208] Ibid art 15(3). See also Nagoya Protocol (n 3) arts 5(1), 6(1). Determining the country of origin is complex, especially in the case of migratory species and microorganisms: see Fran Humphries et al, ‘COVID-19 Tests the Limits of Biodiversity Laws in a Health Crisis: Rethinking “Country of Origin” for Virus Access and Benefit-Sharing’ (2021) 28(3) Journal of Law and Medicine 684.
[210] Including ‘clearing-house mechanisms’ to promote disclosure and exchange: cf ibid arts 15–17; Nagoya Protocol (n 3) arts 5–6, 14.
[211] See CBD (n 2) art 16(5).
[212] For example, requirements for reporting, unique identifiers, Internationally Recognised Certificates of Compliance, checkpoints, checkpoint communiqués and end user compliance measures: see Marcel Jaspars, Fran Humphries and Muriel Rabone, Commonwealth Secretariat, Tracing Options for Marine Genetic Resources from within National Jurisdictions (Advisory Note, July 2021).
[214] For example, some states parties have not implemented ABS measures for resources within their jurisdictions (eg many European countries), while others only regulate resources in specific areas within their jurisdictions: see Humphries et al, ‘Survey of Access and Benefit-Sharing Country Measures’ (n 6).
[215] See Jaspars, Humphries and Rabone (n 212).
[217] Thomas Greiber et al, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-Sharing (IUCN Environmental Policy and Law Paper No 83, 2012) 69; Stephen Tully, ‘The Bonn Guidelines on Access to Genetic Resources and Benefit Sharing’ (2003) 12(1) Review of European, Comparative and International Environmental Law 84, 88.
[218] Nagoya Protocol (n 3) art 33.
[219] Ibid arts 2–3.
[220] This remains a contentious point with the effect of the Nagoya Protocol on ‘genetic resources’ collected before the entry into force being contested and determined by each party according to its domestic laws: see, eg, Brad Sherman and Robert James Henry, ‘The Nagoya Protocol and Historical Collections of Plants’ (2020) 6 Nature Plants 430, 431.
[221] Prior claims that ‘genetic resources’ were the common heritage of humanity probably did not mean that countries were unable to limit or restrict access and export of those materials: see, eg, Kudirat Magaji W Owolabi, ‘The Principle of the Common Heritage of Mankind’ (2013) 4 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 51, 52.
[222] See Fran Humphries, ‘Shellfish Patents Krill Experimentation: Defences for Sharing Patented Aquatic Genetic Materials in Aquaculture’ (2015) 37(4) European Intellectual Property Review 210.
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