Teacher background information

This elaboration allows students to explore emerging ethical and cultural issues regarding the use of traditional knowledges in the development of for-profit solutions to contemporary issues, such as novel pharmaceuticals or agricultural products. In recent decades, multi-national companies have increased their focus on investigating the botanical and zoological knowledges of First Peoples around the world to develop commercial products. The traditional knowledges, especially pharmacopeia, of Australia’s First Peoples are at risk of biopiracy.

As society strives to meet the challenges in combatting new diseases and providing food and economic opportunities for a growing population, there is increasing pressure to find new cures and treatments, more productive agricultural products, and other new natural resources. One way of finding solutions to these challenges is to systematically explore the medicinal, agricultural and economic potential of nature’s biodiversity by investigating species of plants, animals and fungi for the possible presence of substances that may be used to develop new medicines or other commercial products. This screening process is known as bioprospecting.

Due to their longstanding and intimate knowledges of local ecosystems, Aboriginal and Torres Strait Islander peoples and other First Peoples of the world have an acute awareness of the medicinal and other beneficial values of certain species often unknown to Western science. For this reason, commercial enterprises, including research institutions, are increasingly investigating traditional ecological and medicinal knowledges as a focus of their surveying efforts for commercially promising bioactive compounds. In the past, this has often been done without consideration of the rights of First Peoples of the world to own, control and protect their traditional knowledge.

Traditional knowledge refers to the knowledges, know-how, skills and practices of First Peoples. It includes First Peoples’ knowledge and learnings about agriculture, science, flora, fauna, ecology, medicine, health, cosmology and biodiversity developed and passed down between generations over thousands of years.

The United Nations Declaration on the Rights of Indigenous Peoples enshrines the rights of First Peoples to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the intellectual property over their heritage, knowledge and expressions.

In relation to bioprospecting, the United Nations Convention on Biological Diversity, Nagoya Protocol and Bonn Guidelines require the free, prior and informed consent of First Peoples when using and innovating traditional knowledge in bioprospecting processes. Use of traditional knowledge in bioprospecting must be subject to an agreement that ensures equitable sharing of benefits with the holders and traditional owners of that knowledge. This is called an access and benefit sharing agreement.

While these are internationally established legal frameworks and principles on bioprospecting, in Australia there are limitations and gaps in how bioprospecting laws protect traditional knowledge. Bioprospecting laws are state based laws and the Commonwealth lands are covered in the Environment Protection and Biodiversity Act 1999. They focus on a framework for access to genetic resources, but include associated traditional knowledge. Protection largely depends on where the biological resources are found (i.e. the type of land and who owns it) and why the resources are being accessed (i.e. for commercial or non-commercial purposes.  

In the past, the benefits resulting from the development of novel pharmaceuticals or other commercial products based on traditional knowledge have often not been shared with First Peoples’ communities. This practice is commonly referred to as biopiracy.

There is growing awareness of intellectual property by First Peoples and some Indigenous peoples have been able to use intellectual property laws such as copyright, patents and trademarks to protect their traditional knowledge. However, intellectual property laws exist to protect the expression of ideas or the methodologies of individuals and companies; they are not designed to protect the traditional knowledges of First Peoples. This presents unique challenges for First Peoples’ communities. For example, traditional knowledge documented in a journal article can be used as a basis to develop an invention and a patent application without the consent of First People communities who own that knowledge. The Patent Act protects inventions that are new and has an ‘inventive step’. It does not protect underlying traditional knowledge used to develop the invention, nor are patent applicants currently required to disclose traditional knowledge used in their application.  

From the perspective of First Nations’ peoples, there is no distinction between intellectual property rights and cultural property rights. Rather than being owned by an individual or a company, the knowledge is owned by a community. Further, more than just being ‘owned’ by a community, it is often interwoven into cultural belief systems as well. There are ongoing efforts in Australia to have Indigenous cultural and intellectual property rights recognised in legislation and considered alongside other forms of intellectual property.

Since the 1990s, there have been several high-profile legal cases exploring the rights of First Peoples’ cultural property rights world-wide. In Australia, the Kakadu Plum (Terminalia ferdinandiana) has been used for thousands of years as a food source and as medicine by the Mirarr People in the Northern Territory. The Kakadu Plum contains high levels of ascorbic acid (vitamin C) and acts as an antioxidant when applied to the skin. Its beneficial properties, including in the application as a skin care product, have long been recognised by the Mirrar People. Despite their documented traditional medicinal knowledge about the plant, the Mirrar People were not consulted or approached for consent to use their knowledge when an American cosmetic company attempted to patent extracts from the Kakadu plum for use in a commercial cosmetic product. The company eventually withdrew their Australian patent claim in response to community concerns and lobbying against this motion. If granted, this patent could have significantly limited the ability of the Mirarr People to innovate on their knowledge about the Kakadu plum’s properties. The Mirrar People would have had to pay royalties to the US patent holding company in any potential commercial developments by the community of Kakadu Plum extracts for dermal cosmetic products.  However, there are numerous patents held internationally that include Kakadu Plum.

Today, there is an increasing number of examples of scientific and commercial agencies working in successful collaboration with Aboriginal and Torres Strait Islander communities to explore sustainable economic opportunities based on traditional knowledge about flora and fauna. One such example is found in the Cape York region of Queensland, amongst the traditional homelands of the Kuuku I’yu peoples. Parts of their homelands are recognised as an Indigenous Protected Area. The Chuulangun Aboriginal Corporation which represents the community, is working collaboratively with researchers and academics in innovative ways that comply with cultural protocols and promote interaction based on mutual respect and ethical conduct. The corporation acts under several guiding principles to ensure sustainability for the communities and for the ecosystems therein. It focuses on: (1) the intergenerational transfer of knowledge and language; (2) creating homelands-based community enterprises built on sustainable land management principles; (3) creating culturally linked employment opportunities; and (4) incorporating traditional knowledge with contemporary scientific processes to provide benefits to both natural and cultural resource management. In this way, the benefits shared with the community are both monetary and non-monetary – the development of income sources as well as capacity building and knowledge transfer initiatives.

In another example, the Indjalandji-Dhidhanu People of north-west Queensland are working in collaboration with scientists from the University of Queensland’s Australian Institute for Bioengineering and Nanotechnology (AIBN) to develop a commercially viable way of extracting nanocellulose fibres from spinifex grass. These thin yet strong nanofibres with a diameter of less than 10 nanometres can be used as an additive to reinforce flexible materials, such as latex. The University of Queensland and the Dugalunji Aboriginal Corporation have signed a research agreement about the commercialisation of this technology that recognises the Aboriginal traditional owners’ knowledge about spinifex, including farming, harvesting, and bioprocessing techniques. This agreement ensures that the Indjalandji-Dhidhanu People will have ongoing rights, equity and involvement as equal partners in the commercialisation of the nanofibre technology. This allows the community to retain control over their traditional knowledge, as well as benefit from the partnership through the development of employment opportunities and sharing of research findings.

By exploring the context suggested in this elaboration, students have an opportunity to learn how Aboriginal and Torres Strait Islander peoples’ traditional knowledge about the environment has contributed to finding solutions to contemporary issues through the development of pharmaceuticals, design technology, food and cosmetic products. Students consider the ethical and cultural implications arising from the use of Aboriginal and Torres Strait Islander peoples’ intellectual property by community, external or third-party commercial enterprises, which, in the past, have resulted in little or no benefit flowing back to the community. This elaboration can also allow students to understand the issues and explore potential frameworks, best practices, protocols and international instruments to address these concerns, as well as research contemporary examples of mutually beneficial collaborations that can achieve positive outcomes for Aboriginal and Torres Strait Islander peoples as well as for researchers, companies and consumers.