Submission

for the

Draft Biodiscovery Bill 2003

 

 

 

 

 

 

This report is endorsed by:

 

known hereafter as the "Aboriginal Collective"

Confidentiality Clause & Copyright

This work is copyright and cultural and intellectual property right of the Kamilaroi people, SW Queensland. The text and other paragraphs in this publication may be reproduced in whole or part provided that the information is not sold or put to commercial use and its source is clearly acknowledged to it’s authors. Reproduction and storage for all other purposes is prohibited without prior written permission from Dianne Connolly.


 

Introduction

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This response by the South west Queensland Traditional Owners Natural Resource & Cultural Heritage Management Association, the Southern Qld Traditional Owners Federation, the Balonne Indigenous Progress Group, and the NSW Traditional Owners Federation was called for by invitation from the Department of Innovation and Information Technology Economy for a submission on the newly drafted Biodiscovery Bill 2003 for Queensland.

As our organisations were not aware of the new draft Bill until a week ago, we have a limited timeframe in which to prepare a response, and as a consequence the paper is not as detailed as we would like. However, our Indigenous collective will offer a host of recommendations on the proposed draft Bill, which we firmly believe that need to be considered in depth for the formulation and implementation of the proposed Biodiscovery Bill 2003. This will also assist in contributing to the protection of Indigenous cultural heritage, cultural intellectual property rights, benefit sharing arrangements and the recognition of Indigenous peoples as stakeholders in all relevant government processes in Queensland. This last point is a crucial issue for Indigenous people which is severely lacking in all processes at all levels in the current social and political environment.

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Overview

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Our Indigenous collective recognises that while there has been minimal research work undertaken on Indigenous cultural intellectual property rights and a Code of Ethical Practice for the collection of such material through government and other scientific and research groups, the South west Queensland Traditional Owners Natural Resource & Cultural Heritage Management Association has been working on this type of Indigenous policy to protect our regional community and traditional interests in Southern Queensland.

Encompassed within this response is the maximisation of Aboriginal roles in control and management of cultural heritage and cultural intellectual property rights. It will also highlight provisions within the new Bill that assist in providing a clear path for Industry and government in their planning processes to liaise and negotiate with relevant Indigenous people on Country.

The Indigenous collective recognises the shortcomings and weakness of many of the current policies relating to Indigenous people, cultural intellectual property rights and biodiversity values, the only exception being the newly drafted Aboriginal and Torres Strait Islander Cultural Heritage legislation for Qld, which recognises Indigenous people as the primary guardians, keepers and knowledge holders of their cultural heritage . It is crucial that Indigenous people (their rights, cultural practices and activities) are considered as major stakeholder in the administration and planning processes of policies and legislation. This is a basic human and social right for Indigenous people yet to be recognised within government methodologies and systematic actions, in particular policies, strategies, plans and legislation. Until this occurs, the current level of discontent and social outrage will still prevail. This in itself is highly obstructive to many government processes, in particular the obscene waste of resources on many government strategies, plans and policy documents which progress inappropriate cultural consultation and highlight various projects on the pretence of reaching positive outcomes when they have accomplished very few meaningful or indeed substantial outcomes at all.

The newly drafted Biodiscovery Bill 2003 fails to recognise or appropriately incorporate Aboriginal or Torres Strait Islander biodiversity interests in the formulation of this Bill, policy and development. Biodiversity is central to Indigenous cultural practices and spiritual beliefs, cultural intellectual property and the socio-economic wellbeing of Aboriginal and Torres Strait Islander people in Queensland. The proposed Biodiscovery Bill should also link in with the draft Aboriginal and Torres Strait Islander Cultural Heritage Bills as Indigenous cultural heritage, cultural and intellectual property and biodiversity values are interlinked.

Regrettably, the proposed Bill does not take into account that there is a social justice issue in relation to the rights and interests of Indigenous peoples. Instead it provides focus on an Indigenous person being a determined Native Title holder. What many non-Indigenous people and particularly government fails to recognise is that Traditional Owners existed long before the Native Title process was introduced. For most people, their conceptualisation of the Traditional Owner has synonymously been interwoven with and often clouded by the native title issue. However, government needs to separate the two issues and fundamentally re-conceptualise that Traditional Owners existed well before the advent of native title. Indigenous people have long since acknowledged this fact, recognition comes through our own traditional law and not European post-contact law.

Article 8 (j) of the Convention on Biological Diversity was ratified by Australia in 1993, it required each signatory to, subject to its national legislation:

….respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable share in the benefits arising from the utilisation of such knowledge, innovations and practices.

 

Indeed, while the Convention of Biological Diversity encourages the use of incentive for conservation and sustainable use activities. It further requires parties to facilitate the exchange of relevant information including specialised knowledge, Indigenous and traditional knowledge from all publicly available sources and advocates that States are to manage biodiversity through various national plans and strategies. Although Australia ratified this convention, it has yet to fulfil its obligation under this convention.

The Queensland Biodiscovery Bill 2003 - Fact Pack acknowledges and further states on the last page that the:

United Nations Environment Program Convention on Biological Diversity (CBD) encourages the protection of Indigenous knowledge and the wider application of this knowledge with the consent of the knowledge holders, as well as the equitable sharing of benefits arising with traditional knowledge.

However, this has not obviously occurred in the formulation of this Bill as Indigenous people have not been formally recognised as a key stakeholder in this process, nor have they been recognised as the protectors of Indigenous knowledge including any possible wider application of this knowledge with the consent of the knowledge holders. Lastly, there is a lack of clarity over the equitable sharing of benefits for the knowledge holders.

The proposed draft Bill in it’s current state is weak and not representative of Indigenous cultural heritage and intellectual property protection rights and interests, adequate Indigenous consultation processes, benefit sharing agreements and compliance code and collection protocols.

If this proposed legislation passes through all parliamentary processes in it’s current state it will not be at the acceptance from the Indigenous people of this State. Indigenous people have the primary right to be involved in the recognition, protection and conservation of their cultural intellectual property rights and interests and also maintain a right to be involved in regulatory and contractual frameworks for the purpose of this proposed legislation.

 

 

 

 

 

 

 

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The Issues

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For Aboriginal people:

 

 

 

 

 

 

 

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Recommendations

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The recommendations as set out below are based on prioritised issues and objectives as attained from a urgent meeting with our Traditional Owners on Country.

Each recommendation will be presented succinctly within a formatted box of which will be followed by explanatory notes that will expand on the detail each proposed Association recommendations in order to clarify certain points or make special emphasis.

Recommendation 1 — Definition of ‘Aboriginal Cultural and Intellectual Property’

It is strongly recommended that a definition be provided on Aboriginal Cultural and Intellectual Property in Schedule 2.

"Indigenous Cultural and Intellectual Property" refers to Indigenous peoples' right to their heritage and was originally used by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) in their original tender document, including Agenda 21 and is referred to in , Article 29 of the 1994 draft of the Draft Declaration on the Rights of Indigenous Peoples.

Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations.

We also propose that a set of Guidelines be developed for the protection of Aboriginal and Torres Strait Islander Cultural and Intellectual Property Rights and Biodiversity Values. This can be established through culturally appropriate consultation and Indigenous comment on how the guidelines should be drafted. This will further assist in the policy process by linking in with other key Departments including Indigenous cultural heritage, water regulatory process, land management and native vegetation processes. However, Indigenous policy needs to be written by Indigenous people.

 

 

 

Explanatory Notes:

  1. The Bill must provide effective recognition and protection of Aboriginal cultural and intellectual property rights and biodiversity values including adequate benefit sharing agreements for relevant Traditional Owners within Queensland.

In her 1998 ‘Our Culture Our Future’ report, Terri Janke states that heritage comprises all objects, sites and knowledge, the nature or use of which has been transmitted or continues to be transmitted from generation to generation, and which is regarded as pertaining to a particular Indigenous group or its territory.

This definition not only includes Indigenous cultural and spiritual identities which are expressed via song, music, dance, languages, ceremonies, symbols and stories. But, also include Indigenous genetic material including DNA and tissues, Indigenous ancestral remains, immovable cultural property including sacred and historically significant sites and burial grounds, documentation of Indigenous peoples’ heritage in archives, film, photographs, videotape or audiotape and all forms of media. Also encompassed within this definition is all land, soil and bodies of water, including scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and the phenotypes of flora and fauna) which contain cultural and spiritual significance to Indigenous Australians. These definitions are intended to reflect Indigenous peoples and cultures in a contemporary sphere today and which is based on our survival and consensus within out communities.

Indigenous cultural and intellectual property is collectively owned with an individual or group often designated as the traditional custodian or caretaker of a particular item of heritage, in this case biodiversity. These custodians are empowered as caretakers in relation to the particular item of heritage only in so far as their actions conform to the best interests of the community as a whole.

Recently, there has been increasing awareness of exploitation of Indigenous cultural and intellectual property, this has led to the recognition of the need for more effective protection of Indigenous rights. There have been a number of new developments at the international level including:

On a national level, Indigenous peoples statements include:

The development of sui generis approaches need to be based on new forms of legislation that provide appropriate recognition and protection of cultural and intellectual property rights for Indigenous peoples.

Indigenous knowledge systems are relevant to the conservation and sustainable use of biological diversity and are considered as an important component of Indigenous intellectual property. Aboriginal rights for this property include the right to possession and use, as well as the right to exclude others from access or use to or use this knowledge, this includes biodiversity which contain cultural and spiritual significance to Indigenous Australians.

Traditional Knowledge is a term that refers specifically to ecological and biological knowledge that Indigenous people hold. It includes information about plants, such as their location, habitats and properties (i.e. medicinal value). This is an increasingly valuable commodity, which is sought after by the pharmaceutical, scientific, agricultural and cosmetic industries. In recent times, there has been a growing interest in the ‘bush foods’ industry, which relies heavily on Indigenous peoples’ knowledge about the uses of these foods

The Qld Biodiscovery Bill must be drafted so that the proposed legislation recognises the fundamental right of Aboriginal and Torres Strait Islander people to be involved in recognition, protection and conservation of their cultural intellectual property rights and biodiversity values.

A major underlying principle lacking in the Bill’s purpose is to be based on respect for Indigenous knowledge, culture and traditional practices and that Indigenous people should be recognised as the primary guardians, keepers and interpreters of Indigenous cultural and intellectual property and their biodiversity values.

The importance of respecting, preserving and maintaining knowledge, innovations and practices of Aboriginal communities will greatly assist in promoting an understanding of Aboriginal cultural heritage, cultural and intellectual property rights and biodiversity values. Subsequent activities involved in the recognition, protection and conservation of Aboriginal cultural heritage, cultural intellectual property rights and biodiversity values are vitally important because they allow Aboriginal people to reaffirm their obligations to ‘law and Country’ and assist in bridging the cross-cultural barriers between Indigenous and non-Indigenous people.

The primary goals of cultural heritage, cultural and intellectual property rights and biodiversity values protection laws and policies should extend beyond the provision of effective legal protection of areas, sites and objects. Programs developed for the management of Aboriginal cultural heritage and cultural intellectual property rights should promote Indigenous involvement to the greatest extent possible. This should include the effective control over the protection, preservation and promotion of places, areas and objects which are culturally significant to Aboriginal and Torres Strait Islander people which is now covered by the draft Queensland Aboriginal and Torres Strait Islander Cultural Heritage Bills.

Future program aims may include educational cultural and intellectual property rights/guidelines and Indigenous biodiversity values workshops. These can be aimed specifically for the community, government and industry in partnership with Traditional Owners on Country and how all parties can progress together.

Supplementary Comments

It is absolutely vital that the proposed legislation and associated policy and Codes of Ethics documents not amount to be merely a policy initiative which can be open to significant change and/or disregarded in the future. The objectives, aims and outcomes of the proposed Bill must unequivocally enshrine the inherent rights of Aboriginal people in Queensland forever and acknowledge that Indigenous people have a formal voice in this process.

 

 

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Recommendation 2 - Definition and clarification of Traditional Owner and ‘determined’ Native Title Holder

It is strongly recommended that a definition be provided on Native Titles Parties, and Aboriginal and Torres Strait Islander Parties in Schedule 2 and further clarification be stated in Division 4, Section 22 Native title holder exclusive possession determination.

 

Explanatory Notes

  1. Given the current state of the native title processes and determined outcomes within Australia, the proposed ‘effect of native title determination authority’ in Division 4 has already set the Biodiscovery Bill to fail in terms of Indigenous rights and interests again in government processes.

The Bill MUST clarify the Native Title Party and Aboriginal and Torres Strait Islander Party. The rationale of this principle purports that it is critical in achieving comprehensive, appropriate and effective protection for Aboriginal cultural and Intellectual property and Indigenous biodiversity values.

Under the current draft Aboriginal Cultural Heritage Bill for Qld, the Native Title and Aboriginal Parties are defined as follows:

Part 4 - Section 34:

Native title party for an area

  1. Each of the following is a "native title party" for an area-

  1. a registered native title claimant for the area;
  2. a person who, at any time after the commencement of this section, was a registered native title claimant for the are, but only if-

  1. the person’s claim has failed, but there is no other registered native title claimant for the area, and there is not, and never has been, a native title holder for the area; or
  2. the person has surrendered the person’s native title under an Indigenous land use agreement registered on the Register of Indigenous Land Use Agreements; or
  3. the person’s native title has been compulsorily acquired or has otherwise been extinguished;

  1. a registered native title holder for the area;
  2. a person who was a registered native title holder for the area, but only if-

  1. the person has surrendered the person’s native title under an Indigenous land use agreement registered on the Register of Indigenous Land Use Agreements; or
  2. the person’s native title has been compulsorily acquired or has otherwise been extinguished.

(2) A reference in this section to a person who was a registered native title claimant is, if the claimant is no longer alive, taken to be a reference to the native title claim group who, under the Commonwealth native Title Act, authorised the claimant to make the relevant native title determination application.

Part 4 - Section 35:

Aboriginal party for an area

  1. A native title party for an area is an "Aboriginal party" for the area.
  2. A native title party for an area who is or was a registered native title claimant is an Aboriginal party for the whole area included within the outer boundaries of the area in relation to which it made an application under the Commonwealth Native Title Act for a determination of native title, regardless of the nature and extent of the claimant’s claims in relation to any particular part of the whole area.
  3. A native title party for an area who is or was a registered native title holder the subject of a determination of native title under the Commonwealth Native Title Act is an Aboriginal party for the whole area included within the outer boundaries of the area in relation to which the application for the determination was made, regardless of the extent to which native title was found to exist in relation to any particular part of the whole area.
  4. However, the person is not an Aboriginal party for a part of the area if-

  1. native title was not found to exist in relation to the part; and
  2. there is a registered native title claimant for the part.

  1. If there is not native title party for an area, a person is an "Aboriginal party" for the area if-

  1. the person is an Aboriginal person with particular knowledge about traditions, observances, customs or beliefs associated with the area; and
  2. the person-

    1. has responsibility under Aboriginal tradition for some or all of the area, or for significant Aboriginal objects located or originating in the area; or
    2. is a member of a family or clan group that is recognised as having responsibility under Aboriginal tradition for some or all of the area, or for significant Aboriginal objects located or originating in the area.

(6) A reference in this section to a person who was a registered native title claimant is, if the claimant is no longer alive, taken to be a reference to the native title claim group who, under the Commonwealth Native Title Act, authorised the claimant to make the relevant native title determination application.

 

 

 

 

 

 

2) The proposed new legislation must provide a workable process for key industry stakeholders and which adopts a best practice for collection of biodiversity.

A draft Bill for partnership: The key success in the management and  protection of Indigenous cultural and intellectual property and biodiversity values is cooperation between Indigenous       agencies, key industry stakeholders, all levels of government and       Indigenous and non-Indigenous communities. This partnership should be based on a balanced approach to management, conservation and protection that aims to promote       connectivity and communication between the stakeholders, yet provides       a workable process for  all parties involved. Clarity of process has been provided for industry and Indigenous people within the draft Aboriginal and Torres Strait Island Cultural Heritage Bills. There is no reason why the proposed draft Biodiscovery Bill 2003 cannot afford the same workable process for all parties.

The Code of Ethics for collection of biological material must allow consultation and liaison with Traditional Owners to ensure that all collection methods are undertaken in a culturally appropriate manner. Particularly, if the biological material in question is of cultural significance.

3) Ownership - strengthened provisions for Indigenous people:

There should be strong ownership provisions, i.e including and existing rights of ownership and access by Aboriginal and Torres Strait Islander people and Native Title are not effected. This includes a right of ownership of a traditional group of Aboriginal and Torres Strait Islander people, or of a member of a group of Aboriginal and people, in Aboriginal cultural and intellectual property (including biodiversity values) used or held for traditional purposes under Aboriginal tradition, or a person's enjoyment or use of, or free access to, Aboriginal cultural and intellectual property and if:

(3) native title rights and interests.

  1. The proposed new legislation must recognise that Aboriginal people are the primary guardians, keepers and interpreters of cultural and intellectual property and biodiversity values. This is in line with the current draft Qld Aboriginal and Torres Strait Islander Cultural Heritage Bills which acknowledge and promote this point.

 

 

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Recommendation 3 — Clarification on Deciding Applications

A. Section 11: Chief executive’s powers before deciding application

  1. The notice must state a reasonable period of at least 20 business days after it is given (the "stated period") within which the information or document must be given.
  2. Our recommendation is that there needs to be an extra time provision for the Traditional Owners on the Country in question to be consulted regarding an application over that area.

    B. Section 12: Deciding Application

  3. (c) if the application concerns land that is subject to a native title holder exclusive possession determination — that a registered Indigenous land use arrangement allows the authority to be issued;

We strongly recommend that there needs to be strong clarification if there is no native title claim over the Country in question, then there needs to be a provision for the Traditional Owners to be consulted to allow the authority to be issued. This will also ensure and further prompt culturally appropriate collection of any culturally significant biological material.

 

Explanatory Notes

1) A. Section 11: Chief executive’s powers before deciding application - This relates to our recommendation of consulting with the correct people on Country. This process could be assisted by linking in with the draft Aboriginal and Torres Strait Islander Cultural Heritage Bills sites register as it will contain a list of names for the correctly authorised people on Country to contact.

2) B. Section 12: Deciding Application - This relates back to our earlier comments that Traditional Owners on Country existed well before the introduction of the native title process and the fact that many Traditional Owners do not want to lodge a formal native title claim. Government processes have made it more or less compulsory for Traditional Owners on Country to lodge a native title claim on their Country to be formally recognised as a Traditional Owner for that Country.

 

 

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Recommendation 4 - The Bill must provide effective and adequate benefit sharing agreements for relevant Traditional Owners within Queensland

It is strongly recommended that a definition be provided on Native Titles Parties, and Aboriginal and Torres Strait Islander Parties in Schedule 2 and further clarification be stated in Division 4, Section 22 Native title holder exclusive possession determination. BEFORE you provide effective and adequate benefit sharing agreements.

Explanatory Notes

  1. Until you can provide an acceptable definition and further clarification on who the Aboriginal, Torres Strait Islander and Native Title parties are then you CANNOT provide effective and adequate benefit sharing agreements.
  2. Indigenous peoples are entitled to control and benefit from commercial application of biological resources, particularly those of a cultural significance to Indigenous groups.
  3. A major concern of Indigenous people is that their cultural knowledge of plants, animals and the environment is being used by scientists, medical researchers, nutritionists and pharmaceutical companies for commercial gain, often without their informed consent and without any benefits flowing back to the communities in question.
  4. A clear example of this is the Smokebush (Genus Conospermum) as documented in Jankes 1998 report. This plant grows in the coastal areas between Geraldton and Esperance in WA. Indigenous people from this region have traditionally used this bush for healing. Fourmile reports that in the 1960s, the Western Australian government granted the US National Cancer Institute (NCI) a license to collect plants for screening purposes. In 1981, specimens of the Smokebush plant were sent to the NCI to test for the presence of cancer-fighting properties. The subsequent specimens were found to be ineffective, but they were held in storage until the late 1980s when they were tested again in the quest to find cure for AIDS.

    Out of 7,000 plants screened worldwide, the Smokebush was only one of four plants found to contain the active property Conocurovone, which laboratory tests showed could destroy the HIV virus in low concentrations. This "discovery" was subsequently patented and resulted in the US National Cancer Institute awarding AMRAD, a Victorian pharmaceutical company, an exclusive worldwide license to develop the patent. Under the 1985 amendments to the Conservation and Land Management Act 1984 (WA) and the National Parks and Wildlife Act (WA), the Western Australian Minister of the Environment has the power to grant exclusive rights to Western Australian flora and forest species for research purposes. In the early 1990s, the WA government also awarded AMRAD the rights to the Smokebush species, to develop an anti-AIDS drug. According to Blakeney, AMRAD paid $1.5 million to the WA government to secure access to Smokebush and related species. Blackeney reported further that if Conocurovone is successfully commercialised, the WA government will recoup royalties of $100 million per year by 2002-2003. Janke reported that Indigenous people have not received any acknowledgment or otherwise, for their role in having first discovered the healing properties of Smokebush. The Western Australian Centre for Indigenous History and Arts stated:

    The current legislation disregards the potential intellectual property rights that Indigenous peoples in WA have in flora on their lands. Further more, multinational drug companies could be sold exclusive rights to entire species of flora, preventing anyone from using those species for any other purpose without the consent of the companies.

    Indigenous people in WA now face the possibility of being prevented from using any of the flora which is the subject of an exclusive agreement.

    It is therefore vital that any reform of the intellectual and cultural property laws include provisions for the recognition of Indigenous peoples as the native title owners of all the biological resources of the flora and fauna that are on their lands.

  5. Denial of access to land and resources in relation to bioprospecting. This is has led to species screening activities over certain lands resulting in governments exercising their rights over the land and to the denial of access to Indigenous peoples to their traditional lands as a result. This entire process does not allow Indigenous people to manage and develop their inherited medicinal knowledge if they are not granted access to their ancestral homelands. Janke noted that under state conservation and land laws, Indigenous people can be restricted access to their traditional lands including access to native flora and fauna, while governments can freely license the rights to this land and the plants and animals found in its domain.

 

 

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Recommendation 5 - Penalties

It is recommended that penalty units be reviewed to reflect the seriousness of the crime, particularly if the area in question contains significant cultural and intellectual property of Indigenous peoples or which collection methods infringes on a culturally significant site or area.

 

Explanatory Notes

1) See the draft Qld Aboriginal and Torres Strait Islander Cultural Heritage Bills penalty rates.

 

Recommendation 6 — Traditional Owner register

It is recommended that the draft Biodiscovery Bill link in with the Register within the Aboriginal and Torres Strait Islanders Cultural Heritage Bills.

Explanatory Notes

1) There is no current register of Traditional Owners or their representatives with the correct cultural clearances to contact in collection areas within this legislation. However, by linking in with the sites register in the draft Cultural Heritage Bills it will at least provide an initial starting point of contacting the ‘right people’ on Country.

 


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