Collings, Neva --- "Protecting Indigenous Cultural Identity" [2006] IndigLawB 36; (2006) 6(20) Indigenous Law Bulletin 2

Protecting Indigenous Cultural Identity

By Neva Collings

Indigenous knowledge is central to Indigenous cultural identity. The use of Indigenous knowledge by the broader community however, for aesthetic, medicinal, cosmetic, or environmental conservation purposes does not necessarily translate to free, prior and informed consent by Indigenous peoples for the use of this knowledge, nor to sharing in the benefits that flow.

Indigenous knowledge is utilised for conservation of national and state conservation parks; it is used to create TV shows about bush tucker; and it is used to make medicines and cosmetics. It is used commercially to make art, to play songs, to tell stories; but not always while acknowledging the Indigenous source of this knowledge, nor asking permission, nor paying for it.

Protective measures are needed to ensure Indigenous knowledge is not used for gain without free, prior and informed consent. Measures are also necessary to enable meaningful intergenerational transfer of Indigenous knowledge.

The word ‘protect’ is loaded with historical paternalism, however in the context of the developing international legal framework under the Convention on Biological Diversity (‘CBD’),[1] the word ‘protect’ is desired as against terminology of ‘preserve’, ‘maintain’ and ‘transfer’ because it is argued the word ‘preserve’ imparts a positive legal obligation on governments.

The Federal Government has developed a framework for protecting biodiversity in the form of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth). It remains to be seen what divergence will exist between state and territory regulations as they are developed.

The Commonwealth regulations cover the equitable sharing of benefits arising from the use of biological resources, and establish an access regime on Commonwealth areas. The party who seeks to access biological resources on Commonwealth areas must apply for an access permit which is issued by the Minister.[2] The applicant is required to negotiate a benefit sharing contract with Indigenous owners which covers commercial and other aspects with the provider of biological resources.[3] The Minister will issue a permit where they believe that:

• The access applied for is ecologically sustainable; and
• An agreement for benefit-sharing has been prepared which addresses issues of recognition, protection and valuing of the Indigenous knowledge used. The agreement needs also to deal with prior informed consent of any Indigenous owners of the biological resources.[4]

Threats to Indigenous knowledge arise on a number of fronts. The migration of people – especially young people – out of Indigenous communities and into urban areas affects intergenerational transfer of knowledge. Access to traditional lands to maintain and preserve Indigenous knowledge presents another challenge. Developments on lands which impact upon the capacity of Indigenous communities to function healthily, (as with communities around the Ranger Uranium mine), also mitigates against effective and meaningful transfer of knowledge.

Regulatory mechanisms that protect Indigenous knowledge are limited in Australia. Environmental impact assessment mechanisms could be expanded to include impact assessment upon living cultural tradition, not just the geophysical environment, or heritage sites as relics. This is embodied in the United Nations’ Akwé: Kon Guidelines.[5] For example, mining activity is required to rehabilitate or restore the physical landscape.[6] Rehabilitating and restoring people however, is far more difficult. Retrospective social impact assessment, as with the Ranger Uranium mine in the Northern Territory, is a bandaid solution and arguably not successful in ensuring intergenerational transfer of knowledge. A better approach would be to prevent the loss of Indigenous knowledge and foster transmission by minimising impacts on living cultural tradition; not to try to fix it after the social and cultural impact has occurred.

Indigenous communities themselves are developing legal protocols to steer access and benefit sharing of Indigenous knowledge during commercial negotiations with industry. Such protocols can influence bioprospecting, but also unrelated developments like telecommunications or spectrum-based infrastructure.

Indigenous knowledge underpins the practice of biodiversity conservation, increasingly utilised in the management of national and state parks, and to attract tourists to conservation areas. It is questionable how revenue is distributed in recognition of the value of Indigenous knowledge as a contributing ecosystem service. Fees are charged to the public to enter the parks. What proportion of the overall revenue generated by conservation areas dependent upon Indigenous knowledge flows back to Indigenous communities? Can Indigenous communities hunt on these conservation lands without duress?

There is a perception by some that access to Indigenous knowledge is an entitlement, as though it is part of the global commons. Some people decry the withholding of knowledge as unfair because humanity has so much to gain from it. The fact that knowledge is not written down should not preclude it from legal protection. Indigenous people choose to share knowledge; and they can also choose not to.

It is frustrating that on the one hand there is a general push by governments for Indigenous communities to be self-sufficient, economically viable, and to break the cycle of welfare dependency, while on the other, a lack of protective measures inhibits the capacity of Indigenous communities to achieve this whilst maintaining and transmitting their knowledge to the upcoming generations. This knowledge which is essential to keeping Indigenous peoples alive as ‘peoples’.

Neva Collings studied law and economics at university, graduating in 1995, and is presently completing a Masters of Environmental Laws. She has worked for the Human Rights and Equal Opportunity Commission, Gundjehmi Aboriginal Corporation, the Foundation for Aboriginal and Islander Research Action and acted most recently as a consultant on a range of research projects relating to natural resource management.

[1] United Nations Convention on Biological Diversity (‘CBD’), opened for signature June 1992.

[2] Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) regs 8A.06 and 17.03A.

[3] Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 8A.10.

[4] Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) regs 8A.08, 8A.15 and 8A.16.

[5] Secretariat of the Convention on Biological Diversity, Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or Which are Likely to Impact on, Sacred Sites and Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities (CBD Guidelines Series) (2004), <http://www.biodiv.org/doc/ref/tk-akwe-en.pdf> at 15 August 2006.

[6] Ibid, Section 8.