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Raven, Margaret --- "Protocols & ABS: Recognising Indigenous Rights to Knowledge in Australian Bureaucratic Organisations" [2006] IndigLawB 39; (2006) 6(20) Indigenous Law Bulletin 13


Protocols & ABS: Recognising Indigenous Rights to Knowledge in Australian Bureaucratic Organisations

by Margaret Raven

Introduction

It is not surprising that the heralding of the arrival of the ‘knowledge economy’[1] and the ‘knowledge society’[2] has also witnessed an increase in recognition of the ‘value’ of indigenous knowledge to indigenous peoples; for sustainability and biodiversity conservation, and for commercial ventures.[3] International, national and local networks of law and policy including the United Nations Convention on Biological Diversity (‘CBD’),[4] the ILO Convention 169,[5] the Universal Declaration of Human Rights,[6] and the Australian Government’s Nationally Consistent Approach for Access to and the Utilisation of Australia’s Native Genetic and Biochemical Resources[7] (‘Nationally Consistent Approach’) all necessitate the placement of adequate measures for recognising indigenous rights to knowledge. In the context of biodiversity conservation and commercialisation of indigenous knowledge, access and benefit sharing (‘ABS’) has captured the imagination of policy makers throughout international, national and local governance regimes and is viewed as a viable framework through which access to genetic and biological resources, and traditional knowledge, is permitted in association with equitable sharing of the benefits.[8]

ABS has raised a number of issues pertaining to the ownership and control of Indigenous knowledge. Most commentators, while outlining the matrix of intellectual property rights, recognise the inadequacy of this system for recognising indigenous rights to knowledge.[9] In the last decade, organisations within Australia have increasingly turned to protocols as policy models for implementing some of the broader principles enshrined within ABS.[10] This article outlines those broader principles of ABS and discusses the role of protocols in recognising Indigenous rights to knowledge in Australia via a brief comparative analysis of protocols established by the Central Land Council (‘CLC’),[11] the Desert Knowledge-Cooperative Research Centre (‘DK-CRC’),[12] and the Songman Circle of Wisdom (‘SCW’).[13] It concludes by arguing that protocols may be seen as effective policies in recognising Indigenous rights to knowledge and achieving the principles established through ABS.

Access and Benefit-Sharing (‘ABS’)

ABS is a regime established through Article 15 of the CBD and is shorthand for the idea of fair and equitable sharing of benefits arising from access to genetic and biological resources and indigenous and traditional knowledge. Barber et al[14] argue that the CBD’s provisions on access are premised on:

ABS, when viewed through the CBD, places emphasis on the obligation of users to seek the PIC of providers, and for the users and providers to come to an agreement through MAT for implementing equitable sharing of benefits arising from access to genetic resources (and traditional knowledge).[18]

PIC is not defined in the CBD, but is broadly understood to mean consent given by parties to an activity after disclosure of the reasons, risk and implications of the activity.[19] Alexiades and Peluso argue that PIC is best viewed as an ongoing ‘dynamic interactive cycle’ of consultation, and not an event.[20] It is a process through which users, owners and providers explore options, identify common goals and build consent. PIC is also the process through which mutually agreed terms can be reached. However, as Alexiades and Peluso also argue, users cannot realistically foresee all of the potential risks and implications within their research; and PIC ‘hinges on [the] ability to successfully communicate complex abstract and culturally alien concepts’.[21] In addition, as Scott and Ahkee state:

While clearer definitions [of PIC] are developing through human rights ... domestically our focus must be on what we already have in legislation and policy. [22]

Within Australia, PIC and MAT for access to Indigenous and traditional knowledge are recognised through the Nationally Consistent Approach.[23] Beyond national legislation and policy, organisations and corporations need mechanisms with which to implement the principles of ABS in order to recognise Indigenous rights in research and development activities that seek to use or commercialise their knowledge. Protocols provide a mechanism through which ABS can be realised in practice. As Nakata et al argue:

Where legal mechanisms to protect [Indigenous knowledge] have not yet been developed to deal with the intersection between customary law and Western intellectual property law, protocols are important ways to guide appropriate practice.[24]

What are Protocols?

Protocols, as written documents, are a more recent, ‘glocal’,[25] phenomena. The literature is scant on critical analysis of the role that bureaucratically derived protocols seek to play in the recognition of indigenous rights. Given the absence of such analysis, it is not surprising to find a dearth of consistent definitions of what protocols are, or what they seek to do. However, as Garwood-Houng states, ‘[p]rotocols are often defined as “rules” or “procedures”. However, those of us who developed Protocols prefer the term “guidelines”.’[26] To this extent the Bonn Guidelines,[27] the Akwé: Kon Guidelines,[28] and the Addis Ababa Principles and Guidelines[29] all derived from the CBD processes might also be considered protocols. To differing degrees, protocols are established or passed between generations and cultures to draw attention to what is right, good, appropriate and proper; and to the numerous roles, relationships and responsibilities that exist between the users and owners of Indigenous knowledge. According to the Board of Studies in NSW:

Protocols are appropriate ways of behaving, communicating and showing respect for diversity of history and culture. This involves appreciation of the knowledge, standing and status of people within both the local Aboriginal community and the school community. Protocols inevitably vary between communities, and between people within communities. In establishing a partnership between schools and Aboriginal communities it is especially important that protocols are acknowledged and respected.[30]

Protocols exist in multiple forms and differ depending on where you are. Their legitimacy comes from multiple sources including customary law, international law, social norms and bureaucratic requirements of accountability. The aims of protocols are multiple, but they can be said to be principles and guidelines for accountability, responsibility, sustainability, understanding, trust and better communication. They seek to do this by challenging perceptions, expectations, assumptions and behaviour over the use of indigenous knowledge. They can be both written and non-written. Bureaucratic organisations have both written and non-written protocols; but where ABS of Indigenous knowledge in Australia is concerned, organisations such as the CLC, SCW and DK-CRC have tended toward written forms of protocols for transparent measures of accountability.

Central Land Council

The Central Land Council, the Native Title Representative Body for central Australia, has four protocols specifically targeted at research; photography, film, recording and media; environment and conservation activities; and anthropological work.[31] The CLC protocols have jurisdiction over native title lands in central Australia. They include provisions for PIC, participation of Aboriginal people, benefit sharing, recognition of ‘Aboriginal cultural and intellectual property rights’, ethics approval, and publication and dissemination of research outcomes. All of the protocols also have a section for an application for a permit to enter Aboriginal lands.

Desert Knowledge-Cooperative Research Centre (‘DK-CRC’)

DK-CRC is a virtual network of researchers with a management team located in Alice Springs. The DK-CRC’s Indigenous Intellectual Property Protocol (‘IIPP’) is a policy document broken down into three sections: purpose, philosophy and practices.[32] With a recognition that determining the extent of Indigenous knowledge in research and development is a difficult task, the IIPP seeks to share the benefits through allowing ‘an amount from the total Commercialisation revenue of the Centre, equal to the Company’s Participating Share’ allocated into a separate account to be administered by the Indigenous Trustees.[33]

Songman Circle of Wisdom

The Songman Circle of Wisdom Protocol (‘Songman Protocol’) derives from the Songman Circle of Wisdom – a Western Australian Aboriginal corporation operated, managed and controlled by Aboriginal people.[34] The Protocol includes recognition of parallel legal systems, consent, confidentiality, planning, operational implementation and certification.

Comparing the Protocols

While these protocols share the principles of consent and benefit sharing, they differ significantly through their individual recognition of the role of customary law (or traditional law), requirements for ethical approval and clearance, and the use of certification. The CLC protocols and the DK-CRC’s IIPP make reference to formal ethical approval and clearance. While the Songman Protocol is silent on this issue, it places the negotiation of cultural impacts with the community,[35] thus effectively moving control over ethical matters from an external governing body to a community-driven process.

The role of customary law in governing the use, sharing and storing of Indigenous knowledge is recognised in the CLC’s protocols and the Songman Protocol. The DK-CRC’s IIPP does not explicitly recognise customary law, but rather appears to place emphasis on the dominant legal system. However, while the IIPP was established at the inception of the DK-CRC, it also included an inbuilt mechanism for review.[36] Such a mechanism not only allows for the subsequent addition of customary law into the protocol, but also allows for DK-CRC to be reflexive with regard to its own research and commercialisation practices.

Perhaps the most significant difference between the CLC, DK-CRC and Songman Protocols is the process of certification. The Songman Protocol establishes a process of certification for quasi-trademarks or geographical indicators. Rather than waiting for other organisations to create the boundaries for the relationship based on using, commercialising or sharing Indigenous knowledge, the Songman Protocol creates the parameters through which other organisations and corporations can access the knowledge and product.

Conclusion

International, national and local networks of law provide justification through which ‘soft-law’ options may prove successful in achieving the principles of PIC and MAT embedded in the visions of ABS. Protocols such as those established by the Central Land Council, the Desert Knowledge-Cooperative Research Centre and the Songman Circle of Wisdom, provide possible places to locate the principles of ABS in contexts where Indigenous knowledge is used, or sought for use, in commercialisation practices. Protocols create opportunities to challenge existing expectations, assumptions and behaviour over the use and commercialisation of Indigenous knowledge. However, due to the embryonic stage of protocol development and use in Australia, very little critical analysis has been undertaken on their implementation. The recognition of Indigenous rights to knowledge needs to be achieved simultaneously through legal recognition of rights, and through a changing of peoples’ understanding and behaviour of the use, ownership and management of Indigenous knowledge. Protocols may prove to be effective tools through which to achieve this aim.

Margaret Raven is a PhD candidate with the Institute for Sustainability and Technology Policy (ISTP), Murdoch University. She is undertaking research on the Desert Knowledge-Cooperative Research Centre’s Indigenous Intellectual Property Protocol and is funded through the DK-CRC PhD Scholarship program. She is also a recently elected member of the Songman Circle of Wisdom.


[1] Bob Jessop, ‘The State and Contradictions of the Knowledge-Driven Economy’, in John R Bryson et al (eds), Knowledge, Space, Economy (2000); Dale Neef (ed), The Knowledge Economy (1998).

[2] Julian Cribb, Knowledge: Rural Australia's Natural Advantage (Paper presented at the Emerging Technologies in Agriculture: From Ideas to Adoption (Bureau of Rural Sciences) Conference, 25-26 July 2000); Peter Drucker, Post-Capitalist Society (1993).

[3] H Huai and Jianchu Xu, ‘Indigenous Knowledge: An Inexhaustible “Information Bank” for Toxin Research’ (2000) 38(6) Toxicon 745; Terri Janke, Our Culture: Our Future (1997); Terri Janke, ‘Don't Give Away your Valuable Cultural Assets: Advice for Indigenous Peoples’ [1998] IndigLawB 35; (1998) 4(11) Indigenous Law Bulletin 8.

[4] United Nations Convention on Biological Diversity (‘CBD’), opened for signature June 1992. See particularly, Article 8(j) in regard to moral recognition of the rights of indigenous peoples to knowledge; Brendan Tobin, ‘Redefining Perspectives in the Search for Protection of Traditional Knowledge’ (2001) 10(1) Review of European Community & International Environmental Law 47.

[5] International Labour Organisation Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989. See particularly, Article 2(2) in regard to the recognition of economic and cultural rights of indigenous people to identity, customs and traditions.

[6] Universal Declaration of Human Rights, adopted 10 December 1948. See particularly, Article 27(2). See also, Jerzy Koopman, ‘Reconciliation of Proprietary Interests in Genetic and Knowledge Resources: Hurry Cautiously!’ (2005) 53 Ecological Economics 523.

[7] Commonwealth of Australia, Nationally Consistent Approach for Access to and the Utilisation of Australia's Native Genetic and Biochemical Resources (2002).

[8] Bernd Siebenhuner, Tom Dedeurwaerdereb and Eric Brousseau, ‘Introduction and Overview to the Special Issue on Biodiversity Conservation, Access and Benefit-Sharing and Traditional Knowledge’ (2005) 53 Ecological Economics 439.

[9] Terri Janke, Our Culture: Our Future (1997).

[10] See for example, Tangentyere Council, The Tangentyere Protocols ( 2000); Central Australian Division of Primary Health Care (‘CADPHC’) Centre for Remote Health – A joint centre of Flinders University and Northern Territory University; Alana Garwood-Houng, ‘Protocols: Meeting the Challenges of Indigenous Information Needs’ (2005) 36(2) Australian Academic and Research Libraries 149.

[11] The Central Land Council has four protocols: <http://www.clc.org.au/media/publications/protocols/protocols.asp> at 31 July 2006.

[12] Desert Knowledge-Cooperative Research Centre (‘DK-CRC’), Desert Knowledge CRC Indigenous Intellectual Property Protocol (2003). This protocol and other Information on DK-CRC can be accessed via <http://www.desertknowledge.com.au> .

[13] Songman Circle of Wisdom, Songman Protocol. (2004). Copies of the protocol can be obtained by emailing <songmancircle@westnet.com.au>.

[14] Charles V Barber, Lyle Glowka and Antonio G M La Vina, ‘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) 363, 364.

[15] CBD, above n 4, Article 15(4).

[16] Ibid, Article 15(5).

[17] Ibid, Article 15(7).

[18] United Nations University Institute of Advanced Studies, User Measures: Options for Developing Measures in User Countries to Implement the Access and Benefit-Sharing Provisions of the Convention on Biological Diversity (2nd ed, 2003).

[19] Henrietta Fourmile, ‘Using Prior Informed Consent Procedures Under the Convention on Biological Diversity to Protect Indigenous Traditional Ecological Knowledge and Natural Resource Rights’ [1998] IndigLawB 84; (1998) 4(16) Indigenous Law Bulletin 14; Sarah A Laird and Flavia Noejovich, ‘Building Equitable Research Relationships with Indigenous Peoples and Local Communities: Prior Informed Consent and Research Agreements’, in Sarah A Laird (ed) Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (2002) 179.

[20] Miguel N Alexiades and Daniela M Peluso, ‘Prior Informed Consent: The Anthropology and Politics of Cross-Cultural Exchange’ in Sarah A Laird (ed), Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (2002) 222.

[21] Ibid 221.

[22] John Scott and Darryl John (DJ) Ahkee, ‘The Concept of Free, Prior and Informed Consent: From Global to Local’ (2004) 6(7) Indigenous Law Bulletin 9.

[23] Commonwealth of Australia, above n 7.

[24] Martin Nakata et al, ‘Indigenous Knowledge, the Library and Information Service Sector, and Protocols’. 2005 36(2) Australian Academic and Research Libraries 9, 21.

[25] The term ‘glocal’ is used to show the inextricable relationship between the politics and formation of global and local scales. It was a phrase first coined by Erik Swyngedouw in ‘Neither Global nor Local: “Glocalization” and the Politics of Scale’ in Kevin R Cox, Spaces of Globalization: Reasserting the Power of the Local (1997).

[26] Garwood-Houng, above n 10,156.

[27] Secretariat of the Convention on Biological Diversity, Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization ( 2002).

[28] 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).

[29] Secretariat of the Convention on Biological Diversity, Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity (CBD Guidelines Series) (2004).

[30] Board of Studies NSW, Working with Aboriginal Communities: A Guide to Community Consultation and Protocols (2001) 7.

[31] Central Land Council, above n 11.

[32] DK-CRC, above n 12.

[33] Ibid, Clause 7.

[34] Songman Circle of Wisdom, above n 13.

[35] Ibid, Clause 5.4.

[36] DK-CRC, above n 12, Clause 8.


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