Craig, Donna; Davies, Michael --- "Ethical Relationships for Biodiversity Research and Benefit-Sharing with Indigenous Peoples" [2005] MqJlICEnvLaw 8; (2005) 2(2) Macquarie Journal of International and Comparative Environmental Law 31
[*] Professor of Desert Knowledge, Charles Darwin University, Australia and Professor of Law, Centre for Environmental Law, Macquarie University, Australia. The research from this paper is drawn from a Project funded by a Vice Chancellors Development Grant (2005-2006) at Macquarie University, Sydney, Australia: ‘Development of Ethical Approaches and Protocols for Cross-Cultural Biodiversity Research and Benefit Sharing with Indigenous Peoples’.
[**] An independent researcher and consultant specialising in Indigenous rights in traditional knowledge and biodiversity.
[1] Conference of the Parties to the Convention on Biological Diversity, Access and Benefit-Sharing as Related to Genetic Resources, Bonn Guidelines on Access to genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation, UN Environment Programme, 6th meeting, UN Doc UNEP/CBD/COP/6/24 (2002); See also Michael Jeffery ‘Bioprospecting: Access to Genetic Resources and Benefit-Sharing under the Convention on Biodiversity and the Bonn Guidelines’ (2003), v. 6(2) Singapore Journal of International, 747-808
[2] National Legislation of Costa Rica, Biodiversity Law, Article 82 Ley No 7788:1998. See also Charles V Barber et al, ‘Developing and Implementing National Measures for Genetic Resources Access Regulation and Benefit-Sharing’ in Sarah A Laird (ed), Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (2002) 393-6.
[3] Henrietta Fourmile, ‘Using Prior Informed Consent Procedures under the Convention on Biological Diversity to Protect Indigenous Traditional Ecological Knowledge and Natural Resource Rights’ (1998) 16(4) Indigenous Law Bulletin 15.
[4] Ibid 16.
[5] Articles 16 to 23.
[6] Section 8.
[7] Section 8(1)(a)
[8] Section 10.
[9] UN ESOSOC (1986) ‘Study of the Problem of Discrimination Against Indigenous Populations, United Nations Economic and Social Council’, E/CN.4Sub.2/1986/7 and Add.1-4.
[10] D A Posey, ‘Introduction: Culture and Nature – The Inextricable Link’ (1999) Cultural and Spiritual Values of Biodiversity 4.
[11] See Michael Davis, ‘Bridging the Gap, or Crossing a Bridge?: Indigenous Knowledge and the Language of Law and Policy’ in Fikret Berkes et al, (eds), Bridging Scales and Knowledge Systems: Linking Global Science and Local Knowledge in Assessments (2006 forthcoming).
[12] S A Hansen and VanFleet, ‘Traditional ecological knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Ecological Knowledge Holders in Protecting their Intellectual Property and Maintaining Biological Diversity’ (2003) AAAS 3.
[13] Despite the comprehensive report on recognition of Aboriginal customary laws in Australia, released in 1986, the debate about legal pluralism and customary law recognition has not advanced to a great extent. See Australian Law Reform Commission, Report No 31, ‘The Recognition of Aboriginal Customary Laws’ (1986); also James Crawford, ‘Legal Pluralism and the Indigenous Peoples of Australia’ in Oliver Mendelsohn and Upendra Baxi (eds), The Rights of Subordinated Peoples (1994) 178-220. For a useful discussion on the relationship between legal pluralism and natural resource property rights, see Ruth S Meinzen-Dick and Rajendra Pradhan, ‘Legal Pluralism and Dynamic Property Rights’ (CAPRI Working Paper No 22, CGIAR Systemwide Program on Collective Action and Property Rights, International Food Policy Research Institute, Washington, DC, January 2002).
[14] J C Altman, ‘Sustainable Development Options on Aboriginal Land: The Hybrid Economy in the Twenty-First Century’ (Discussion Paper No 226. Centre for Aboriginal Economic Policy, Canberra, 2001) 5.
[15] A useful paper exploring the important relationship between cultural diversity and biological diversity is Harriet Ketley, ‘Cultural Diversity Versus Biodiversity’ (1994) 16 Adelaide Law Review 99-283.
[16] Martha Johnson (ed), Lore: Capturing Traditional Environmental Knowledge (1992) 4.
[17] D A Posey, ‘Introduction: Culture and Nature – The Inextricable Link’ (1999) Cultural and Spiritual Values of Biodiversity 7.
[18] Declaration of the United Nations Conference on the Human Environment Stockholm, 1972, Principle 2.
[19] Cocoyoc Declaration 1974.
[20] Declaration of San Jose UNESCO, 1981, para 3.
[21] Declaration of San Jose UNESCO, 1981.
[22] http://www.unmillenniumproject.org/reports/index.htm
[23] Donna Craig, ‘Biological resources, IPRs and International Human Rights: Impacts on Indigenous and Local Communities’ in Burton Ong (ed), Intellectual Property and Biological Resources (2004) ch 10, 352-393; Michael Davis, ‘Law, Anthropology, and the Recognition of Indigenous Cultural Systems’ in René Kuppe and Richard Potz (eds), Law and Anthropology: International Yearbook for Legal Anthropology 11 (2001).
[24] Meeting of Experts on Human Rights and Environment – Geneva, 16-18 May, 1994.
[25] Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report, 1993, 91.
[26] CERD/C/54/Misc.40/Rev 2, 18 March 1999, para 6.
[27] Paras 7 and 8.
[28] Para 9.
[29] Social Justice Report No 2/2003, 188.
[30] CERD Committee General Recommendation XXII – Indigenous Peoples, UN Doc CERD/C/51/Misc.13/Rev 4, 18 August 1997, para 4, cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report No 2/2003, 188.
[31] Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2002) 132-133.
[32] IWGIA, ‘Indigenous Poverty: an Issue of Rights and Needs’ (International Work Group for Indigenous Affairs, 1/2003) 46.
[33] Ibid.
[34] Ibid 38.
[35] Ibid.
[36] Ibid 46.
[37] ‘Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research’, Endorsed by Council at its 148th Session on 5 June 2003, 4.
[38] Larissa Behrendt, ‘The Protection of Indigenous Rights: Contemporary Canadian Comparisons’ (Research Paper No 27, Parliamentary Library, Canberra, 1999-2000) 7.
[39] Ibid 8.
[40] IUCN Environmental Law Centre, ‘The Convention on Biological Diversity: An Explanatory Guide’, Bonn, IUCN Biodiversity Program, 1994, 48.
[41] Ibid 93.
[42] For a discussion on the importance of better understanding Indigenous concepts, see for example Michael Davis, ‘Bridging the Gap, or Crossing a Bridge? Indigenous Knowledge and the Language of Law and Policy’ in Fikret Berkes, Doris Capistrano, Walt Reid, and Tom Wilbanks (eds), Bridging Scales and Knowledge Systems: Linking Global Science and Local Knowledge in Assessments (2006 forthcoming).
[43] Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity, ‘Conference of the Parties’, UNEP/CBD/COP/6/20, Paragraph 34. <http://www.biodiv.org/programmes/socio-eco/traditional/decisions.asp> last accessed 18 November 2003.
[44] Articles 8(j) and 15.
[45] See Lyle Glowka et al, ‘A Guide to the Convention on Biological Diversity’ (IUCN Environmental Policy and Law Paper No 30, Gland, Switzerland, and Cambridge, England, IUCN, 1994) 48-49.
[46] Article 15(4).
[47] Article 15(5).
[48] Article 15(7).
[49] Article 8(j).
[50] Sarah A Laird, ‘Introduction: Equitable Partnerships in Practice’ in Laird, above n 2, xxix-xxx.
[51] Ibid xxii-xxxvi.
[52] Ibid xxiii. Note that Laird characterises ‘best practice’ in this context as ‘standards of practice that are widely regarded by those in the field as representing the highest levels of conduct, and the practical implementation of core underlying principles such as conservation of biodiversity, sustainable use, and equitable benefit-sharing’, ibid xxiv.
[53] Sarah A Laird and Flavia Noejovich, ‘Building Equitable Research Relationships with Indigenous Peoples and Local Communities: Prior Informed Consent and Research Agreements’ in Laird, above n 2, 185.
[54] Ibid 189-90.
[55] Ibid 192.
[56] See for example Walter V Reid et al, Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (1993); Kerry ten Kate and Sarah A Laird, The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing (1999); Sarah A Laird (ed), Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (2002).
[57] Brendan Tobin, ‘Biodiversity Prospecting Contracts: the Search for Equitable Agreements’ in Laird, above n 2, 287-309.
[58] Articles 15 and 16.
[59] Article 8(j).
[60] Conference of the Parties to the Convention on Biological Diversity, Access and Benefit-Sharing as Related to Genetic Resources, Bonn Guidelines on Access to genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation, UN Environment Programme, 6th meeting, UN Doc UNEP/CBD/COP/6/24 (2002); See also Jeffery, above n 1, 786.
[61] Parshuram Tamang, ‘An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices’ (paper presented at the Workshop on Free, Prior and Informed Consent and Indigenous Peoples, organised by the Secretariat of UNPFII, UN Headquarter, New York, USA, 17-19 January 2005).
[62] See for example Marcus Colchester, ‘Sharing Power: Dams, Indigenous Peoples and Ethnic Minorities’ (paper prepared for the World Commission on Dams (WCD), Cape Town, Secretariat of the World Commission on Dams, November 2000).
[63] www.wipo.int/tk/en/tk/index.html see WIPO Publication No 920(E).
[64] Ibid 16-31.
[65] UNESCO Convention on Intangible Cultural Heritage, Article 2(2).
[66] Paul Kuruk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of the Intangible Cultural Heritage’ 1(1) Macquarie Journal of International and Comparative Environmental Law 111-135.
[67] Ibid.
[68] http://www.earthcall.org/en/.
[69] General Agreement on Tariffs and Trade, 30 October 1947, 61 Stat A3, 55 UNTS 187.
[70] See for example Simon Walker, ‘The TRIPS Agreement, Sustainable Development and the Public Interest’ (IUCN Policy and Law Paper No 41, IUCN and CIEL, IUCN publication services, 2001) xii.
[71] Article 1.2 of the TRIPS Agreement states that ‘for the purposes of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II’.
[72] Walker, above n 69, xi.
[73] Ibid.
[74] Ibid x.
[75] Michael Davis, ‘Bridging the Gap, or Crossing a Bridge?: Indigenous Knowledge and the Language of Law and Policy’ in Fikret Berkes et al, (eds), Bridging Scales and Knowledge Systems: Linking Global Science and Local Knowledge in Assessments (2006 forthcoming).
[76] Erica-Irene Daes, ‘Supplementary Report of the Special Rapporteur on the Protection of Heritage of Indigenous Peoples’, UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 48th Session, E/CN.4/Sub.2/1996/22, 5.
[77] Terri Janke, Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (1998) 47-48.
[78] F Yamin and D Posey, ‘Indigenous peoples, biotechnology and intellectual property rights’ (1993) 2(2) Review of European Community and International Environmental Law 143. Michael Davis, ‘Indigenous Peoples and Intellectual Property Rights’ (Research Paper No 20 (1996-97), Information and Research Services, Department of the Parliamentary Library, Canberra, June 1997); Michael Davis, Biological Diversity and Indigenous Knowledge (Research Paper No 17 (1997-98) Information and Research Services, Department of the Parliamentary Library, Canberra, June 1998); Michael Davis, ‘Indigenous Rights in Traditional Knowledge and Biological Diversity: Approaches to Protection’ (1999) 4(4) Australian Indigenous Law Reporter 1-32.
[79] Ibid.
[80] United Nations Conference, ‘Environment and Development: Convention on Biological Diversity’, 5 June 1992, UNEP/Bioprospecting.Div./N7BINC5/4, reprinted in 31 ILM 818 (1992) (entered into force 29 December 1993).
[81] Darrell A Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (1996); Davis, above n 76, 1-32.
[82] Hansen and VanFleet, above n 11.
[83] Hansen and VanFleet, above n 11, 9.
[84] Hansen and VanFleet, above n 11, 12-13.
[85] Hansen and VanFleet, above n 11, 15.
[86] Hansen and VanFleet, above n 11, 16.
[87] UNU-IAS, The Role of Registers and Databases in the Protection of Traditional Knowledge: A Comparative Analysis (2003).
[88] Hansen and VanFleet, above n 11, 18.
[89] Hansen and VanFleet, above n 11, 18, citing World Trade Organization Report, ‘Trading into the Future: The Introduction to the WTO, Intellectual Property Protection and Enforcement’, Geneva, WTO, August 2002.
[90] Trademark Act 1995, s 17.
[91] Hansen and VanFleet, above n 11, 20-21.
[92] Hansen and VanFleet, above, n 11, 21.
[93] Hansen and VanFleet, above n 11, 24.
[94] Hansen and VanFleet, above n 11, 30.
[95] Ibid.
[96] For the IUCN see http://www.iucn.org/themes/law/cel03A.html; for the Desert Knowledge CRC, see www.desertknowledge.com.au.
[97] See the ‘Review of the National Statement on Ethical Conduct in Research Involving Humans- First Consultation Draft’, National Health and Medical Research Council Australian Research Council Australian Vice Chancellor's Committee, December 2004; Also of use is the ‘Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research’, Endorsed by Council at its 148th Session on 5 June 2003.
[98] AIATSIS, ‘Guidelines for Ethical Research in Indigenous Studies’ (2000).
[99] See for example Darrell Addison Posey, ‘Introduction: Culture and Nature – The Inextricable Link’ in Posey (ed), The Cultural and Spiritual Values of Biodiversity (1999), 3-18.
[100] The Crucible II Group, ‘Seeding Solutions- Options for National Laws Governing Access to and Control Over Genetic Resources and Biological Innovations’, Ottawa, Rome, and Uppsala, International Development Research Centre, International Plant Genetic Research Institute, the International Plant Genetic Resources Institute, and the Dag Hammarskjold Foundation (2001) especially 45-55.
[101] Ibid 36.
[102] See Alan R Emery, ‘Guidelines: Integrating Indigenous Knowledge in Project Planning and Implementation’ (Worksheets Checklist of Best Practices, International Labor Organization, The World Bank, The Canadian International Development Agency, and KIVU Nature Inc, Washington, 2000) 36.
[103] ‘Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research’, Endorsed by Council at its 148th Session on 5 June 2003, 8.