Indigenous Knowledge Management: Collaborative ForumThe Ark Group Australia22 March 2011, Bayview Boulevard, Sydney

Dr Michael Davis, Independent Academic, Sydney

Michael Davis Consultants e mdavis@pcug.org.au m 0417 401 241

Indigenous Knowledge, Prior Informed Consent, and

Ethical Research Engagement: Some Recent Developments and Future

Directions

Some recent developments concerning Indigenous Knowledge (IK), consent and ethical research;

How can Free, Prior and Informed Consent (FPIC), and ethical research protocols help maintain the viability and protection of IK?

Some key issues and challenges for ‘best practice’ approaches to recognition and maintenance for IK.

INDIGENOUS AND WESTERN KNOWLEDGE SYSTEMSTwo systems working together

Indigenous Knowledge Western knowledge: land and resources; IPRs,

NRM;information & data collection & management

digitisation

PIC

ProtocolsEthics

Some International DevelopmentsInternational standards and laws provide an

essential impetus and obligation to develop appropriate approaches in Australia, e.g:

ILO Convention 169 (Art 2: cultural rights, ‘customs & traditions’; Art 5: ‘spiritual values’, etc) – not ratified by Australia

CBD (Australia a signatory)UNDRIP (Australia now endorses)WIPO (Australia participates in

negotiations)

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

Ratified by the UN General Assembly in September 2007;In April 2009 the Rudd Government in Australia endorsed

the Declaration;The Declaration contains important provisions for IK, e.g

Art. 31:Indigenous peoples have the right to maintain, control,

protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, ..... They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

The International Framework: e.g. the Work of WIPO

The World Intellectual Property Organisation (WIPO) is developing an international legal instrument through its Intergovernmental Committee on Intellectual Property, and Genetic Resources, Traditional Knowledge and Folklore (“the IGC”);

Draft provisions for Protection of TK are currently being negotiated.

Some Developments in Australia

Protocols: e.g. CLC, DKCRC;Guidelines: e.g. NRMB NT, AIATSIS GERIS;Legislation: e.g. Genetic resources regime;

copyright amendment laws;Other: e.g. Community knowledge centres;

on-country initiatives.

Indigenous Knowledge: Balancing Protection with Use

The challenge is to balance protection, with use:

USE: (a)By Indigenous people, on-country through inter-

generational transmission & also in other situations;(b)Sharing IK with the wider community (including

Indigenous people) for commercial, scientific, industrial and wider ecological and conservation/management.

PROTECTION:(a)Preventing misuse & exploitation;(b)IK is endangered;(c)Keep it in the community.

A Delicate Balance?Balancing interests and priorities

Indigenous Ecological Knowledge

Natural Resource Management

Caring for Country (eg fire management); park management & conservation

Bush foods enterprise development

Fishing & other resources

Native title

Education, research, tourism

Trade

Intellectual

Property Rights

Science, commerc

e & technolo

gy

Law Reform and Legal Developments

Current laws in Australia do not protect or recognise Indigenous rights in IK:There remains a need to consider real legal reform to

develop sui generis approaches, and explore Indigenous communal rights, full disclosure for patent applications, and other measures;

Intellectual property laws are often cited – such as copyright;

Amendments to the Copyright Act 1968 in December 2000 were made to provide for moral rights. These are ‘personal legal rights belonging to the creators of copyright works and cannot be transferred, assigned or sold’ (Australian Copyright Council 2006). These have implications for Indigenous people as creators. They do not provide for IK.

Is Indigenous Knowledge compatible with intellectual

property rights?To what extent can we argue that Indigenous

knowledge is a form of property that can be amenable to consideration within the IPR regime?

There are some fundamental incompatibilities between Western systems of IPR, and IK. They are based on distinctly different conceptual systems.

Looking at Alternatives: Indigenous Knowledge ManagementNeed to shift away from one-dimensional

views about ‘protection’, and reliance on legal approaches;

Should consider a wider approach – one based on management of Indigenous knowledge;

Management of IK should be considered in the context of wider knowledge and information systems.

Equitable Benefit-SharingProvided in the CBD (Art 15)Key Principles:Negotiate on Mutually Agreed TermsEnsure Free Prior Informed Consent;Negotiate benefits, including financial & non-

financial, and distribution processes and mechanisms;

Include Indigenous knowledge protection and IP sharing.

The CBD and its work on ABSCan further strengthen the development of an Australian

regime.Some recent international developments under the CBD

are:A report: ‘Access and Benefit-Sharing in Practice: Trends

in Partnerships Across Sectors’;The Nagoya Protocol on Access to Genetic Resources

and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD), an international agreement:

aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.

adopted by the Conference of the Parties to the CBD at its tenth meeting on 29 October 2010 in Nagoya, Japan.

Australian Implementation of the CBD’s Provisions for Access and Benefit Sharing

Australia’s implementation of international standards on access and benefit –sharing for biological & genetic resources (including TK protection) is through:The Environment Protection & Biodiversity

Conservation Act 1999 and its Regulations provide the framework in Australia; and

The Nationally Consistent Framework for Access to Genetic Resources.

Free, Prior Informed Consent

Originated in health sector; research involving humans;

Formulated in international laws (e.g. UNDRIP);

Gaining prominence in Indigenous research;Should be a process, not a single ‘event’;Is an important element of Indigenous

peoples’ right to self-determination;Indigenous people have the right to say ‘no’,

or to withdraw their consent.

Free Prior Informed Consent (FPIC)

An important ethical requirement in all research projects, requires:

Provision of full, clear and accessible information about project before starting a project, research, or development [‘informed’],

Must allow people/communities to voluntarily decide [‘free’],

Project participants to decide if they want to give, or refuse permission [‘consent’],

FPIC is an ongoing process, not a ‘one-off’.

The Convention on Biological Diversity (CBD) on ‘consent’

Article 15(5):Access to genetic resources shall be subject to

prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.

What is Free, Prior and Informed Consent?

‘free’ means that Indigenous peoples’ consent being sought must not be coerced, but should be sought in a free and fair way.

 ‘prior’ means that Indigenous people should be provided with full and adequate information about a project before or prior to the start of a project. In general, ‘prior’ is a requirement that:

... having sufficient time to allow for information-gathering and full discussion, including translations into traditional languages, before a project starts. It must take place without time pressure or constraints. A plan or project must not begin before this process is fully completed and an agreement is reached.

The term ‘informed’ means ‘having all the relevant information available reflecting all views and positions’

(International Indian Treaty Council IITC 2008).

FPIC is part of Ethical ResearchIncreasing attention is being given to the

development of ethical approaches to research, where management of IK is required, to incorporate provisions for FPIC.

Ethical Researchis about ensuring responsible conduct in research. The development and upholding of ethical standards in research requires adherence to the following, among the key principles of good conduct:

Protection of the integrity and rights of all persons involved in, and affected by the research

Ensuring responsible approaches to the research, including appropriate granting of permission, and full participation

Ensuring openness, honesty, and competence in research and its outcomes

Ensuring protection of rights in privacy, confidentiality, and respect for intellectual and cultural property

Consistency with national lawsPreventing misconduct

Ethical Research in Indigenous Studies: the AIATSIS Guidelines – The Australian Institute of Aboriginal and

Torres Strait Islander Studies (AIATSIS), Guidelines for Ethical Research in Indigenous Studies are a national standard, and have recently been fully revised and updated;

This revision pays particular attention to the role of (management of) Indigenous knowledge.

How Can All these Developments Help the Sensitive Management of IK?Can use existing and emerging legal

developments, including international, combined with new and innovative approaches, including protocols, ethical guidelines and sui generis regimes.

Lessons Learnt & A Way Forward?

Appropriate and sensitive management of Indigenous knowledge requires an innovative and creative approach. It may include at least the following:

Need for real, effective engagement and participatory approaches, including partnerships and dialogue between governments, researchers, organisations, and Indigenous peoples;

Better support and recognition for Indigenous rights to participate equitably, and upholding and implementation of relevant provisions in the DRIP;

Analysis and consideration for reform of the language of law and policy to better reflect Indigenous peoples’ views, concepts and approaches; and

Develop sui generis approaches.