Traditional Knowledge and Bioprospecting

With a rich knowledge being hand over throughout generations, indigenous communities have
valuable cultures that have been preserved to help their communities to live their shared life to
the fullest. This wisdom, also called Traditional Knowledge (TK), is present in such groups. A
study conducted by Department of Anthropology of the University of Pennsylvania defined TK
as ‘a network of knowledges, beliefs, and traditions intended to preserve, communicate, and
contextualize Indigenous relationships with culture and landscape over time.’1
Traditional Knowledge, if harnessed properly, can benefit not only the national economy and the
society but the communities from which the knowledge comes from. A report from Parliament of
Australia cites that ‘there are significant opportunities for government and industry to engage
with Indigenous people in a way that will maximise the potential for increased productivity
across a wide range of scientific activity.’2 The Australian Government is serious in protecting
the rights of the Aboriginal and Torres Strait Islanders while promoting advancement in science
and medicine.
To harness the fullest potential of TK is through bioprospecting. A study conducted by IP
Australia explained the concept, ‘(it) involves the search for useful plant related substances that
can be developed into marketable commodities such as pharmaceuticals, pesticides and
cosmetics’.3 As a great tool in science application, it directly affects humanity. Furthermore, it
helps the scientific professionals in the further advancement of medicine.
Indigenous people has been subject to the impact of bioprospecting. A tribal group from Western
Ghats area, Kerala, India, the Kani Group has been receiving the effect of it ever since they
entered into a benefit sharing agreement.4 Though there are some issues with the benefit
received, there were some reasonable license fee paid by the Tropical Botanical Garden and
Research Institute (TGRI), the developer of the medicine called Jeevani.5

1
Claire Smith (ed), Encyclopedia of Global Archeology, (Springer, 2014) 117.
2
Jacqueline Carroll, Indigenous Knowledge: Adding Value to Science and Innovation, (Webpage, 2017)
<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2017/
November/Indigenous_Knowledge_and_Science>.
3
Michael Davis, Biological Diversity and Indigenous Knowledge (Research Paper No 17, Parliamentary Library,
Parliament of Australia, 1998), 5.
4
R.V. Anuradha, Sharing with the Kanis: A Case Study from Kerala, India, (Case Study, 1998) 5.
<https://www.cbd.int/doc/case-studies/abs/cs-abs-kanis.pdf>
5
Ibid 10

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A consortium of indigenous groups from Northern Australia is a model in harnessing
bioprospecting that can benefit the community. The Northern Australia Aboriginal Kakadu Plum
Alliance protects the interest of the indigenous community while reaping the medical benefit of
Kakadu Plum.6
These case studies can wisely be replicated wherein both stakeholders, the developer and the
indigenous communities, received tantamount benefits.

Traditional Knowledge and Patent Act 1990

The Patent Act (1990) outlined strict rules on how an invention or process of invention can be
protected in Australia. Though some aboriginal processes and inventions were able to acquire
patent protection, in general, TK is having some difficulty in terms of acquiring the full security
of the law. It is a biased against the indigenous communities and an impediment that the
Aboriginal and Torres Strait Islanders have been facing with difficulty. A study conducted by IP
Australia stated that ‘much (of) Indigenous Knowledge (TK) concerning agricultural,
pharmaceutical and scientific practices, passed down through generations, is not generally
patentable because it cannot meet the necessary legislative criteria.’7 These conditions are
novelty, patent life, and prior art base. These legal handcuffs make the progress and
development of these groups near to impossible. It is an imperfection that needs further
assessment by the policy giving bodies of the state.
Another analyses that thoroughly investigate the probability of TK to be patented is Intellectual
Property Law and the Protection of Indigenous Folklore and Knowledge, a study authored by
Joseph Githaiga, he discussed the issue in length and said,

The difficulties that indigenous peoples have with the patent regime arise, firstly, from
meeting the requisite conditions for patent protection, and secondly, from the costs of
registering and maintaining patents. Underlying the first problem is divergence in western
and indigenous notions of property rights and their function.8

6
The Northern Australian Aboriginal Kakadu Plum Alliance NAAKPA is an alliance of Aboriginal-owned companies
supplying Kakadu Plum Fruit and extracts for Australian Market, (Webpage Article) <https://naakpa.com.au/about-
naakpa>
7
Maiko Sentina et al, Legal Protection of Indigenous Knowledge in Australia, (Supplementary Paper 1, 2018) 16.
8
Joseph Githaiga,’Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge’, (June 1998)
5(2) eLaw Journal: Murdoch University Electronic Journal of Law 82 (‘Indigenous Folklore and Knowledge’)

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It is being outlined that there are two conditions that hinders an indigenous peoples to acquire the
protection of the Patent Protection Law. Though these reasons help the government in proper
implement of the Act, in effect having an orderly society, TK becomes vulnerable to Biopiracy.
The practice is defined as an exploitation of TK thus the indigenous community. It only favors
the developer and the companies thus maximizing their profit. On other perspective of this
mistreatment, ‘Biopiracy is a situation in which indigenous knowledge of nature, originating
with indigenous peoples, is used by others for profit, without permission from and with little or
no compensation or recognition to the indigenous people themselves.’9
Furthermore, J. Githaiga discussed thoroughly the first hurdle, which is meeting the requisite
condition for the patent. The journal stated that ‘Section 18 of the Australian Patents Act 1990
(Cth) set outs five requirements for a patentable invention, of which the most relevant to
indigenous knowledge are manner of manufacture, novelty, and an inventive step.’10 Similar to
the observation of the study done by IP Australia, these conditions are detrimental for the TK.
Other hurdle that an Indigenous custodian should passed through for Patent Protection is costs of
registering and maintaining patents. Such obstacles is detrimental on the part of the communities
because they don’t have enough resources to these hefty tasks. As mentioned on the paper,

Even where indigenous peoples are able to satisfy the elements of patentability they still face
the prohibitive costs of registering, maintaining and defending the patents… The financial
costs involved in maintaining and defending patents may also present a formidable barrier to
effective protection of indigenous knowledge…For a patent holder to fully commercially
exploit a patent they must have the ability to license it out to others... Most corporate patent
holders have access to specialised legal and other advice. Indigenous communities on the
other hand do not usually have the financial resources to recruit such advice and are thus
poorly equipped to determine the fairest proposals.11

These are some of the biases of the Patent Act 1990 that’s against the Indigenous People. It is clear
that there are some legal challenges in putting a TK in a patent protection. Though the Act’s
essence is the protection of the innovators and their invention, in thorough assessment and

9
Henk Hobbelink, Biopiracy, (Webpage Article, 2015) <http://www.ejolt.org/2015/09/biopiracy/>
10
Indigenous Folklore and Knowledge 83
11
Indigenous Folklore and Knowledge 88, 89, 90

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analyses, the indigenous custodians have some difficulty in protecting the interest of traditional
knowledge because of the setbacks mentioned.

International Law on Traditional Knowledge (420 words)

Being part of the United Nation, it is imbedded in the Australian society and to the state the charters
passed through the organisation. A particular agreement in which tackles the rights of the Indigenous
people is the United Nation’s Declaration on the Rights of Indigenous People. According to Article
31 Section 1,

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, sports and traditional games and visual and performing arts. They also
have the right to maintain, control, protect and develop their intellectual property over such
cultural heritage, traditional knowledge, and traditional cultural expressions.12

Furthermore, the declaration reminds the state of their responsibility to indigenous members of the
society. ‘States shall take effective measures to ensure that no storage or disposal of hazardous
materials shall take place in the lands or territories of indigenous peoples without their free, prior
and informed consent.’13
The implementation and protection of TK has great importance with UN, thus Nagoya Convention
was conceived. Australia becomes 76th signatory of the protocol.14 This inclusion signals a great
paradigm shift of the policy of the Australian State with the TK and bioprospecting.
In the proclamation, there is a strong emphasis on the role of the state on how to protect the
indigenous community. There is a strong emphasis on benefit-sharing mechanism

Parties shall consider the need for and modalities of a global multilateral benefitsharing
mechanism to address the fair and equitable sharing of benefits derived from the utilization of

12
United Nation, United Nation’s Declaration on the Rights of Indigenous Peoples, (Declaration, 2007) (31) 1.
13
Ibid 2
14
United Nation, United Nation’s Decade on Biodiversity, (Communique, 23 January 2012)

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 genetic resources and traditional knowledge associated with genetic resources that occur in
transboundary situations or for which it is not possible to grant or obtain prior informed
consent.15

This shows that the state has a legal obligation towards the indigenous communities. The company
though in a strict sense is not a party to the agreement, being part of the Australian Society is
mandated as well to abide to the rules of the protocol.

Corporate Social Responsibility (400)

All the action of the company in relation to the development of the essence extracted from a local
shrub should be anchored to the protection and respect to the indigenous community who protects the
traditional knowledge for many years. As a member of the same society, it is the responsibility of
the corporation, having a moral ascendency and being superior in terms of resources to uphold
their rights. Though this noble task doesn’t translate additional profit, it is actually aligned to the
core mission of the business. It is because the company has publicly expressed a commitment in
providing sustainably sources products. Aside from that, the company wishes to be a leader in
corporate social responsibility.
Moreover, as the Nagoya Protocol declared, the Parties who signed the agreement should abide
the treaty. It is the obligation of the company to follow what is being directed to ensure order and
harmony in the Australian Society. Having all these noble principles, the company can
implement these policies to ensure profitability of the product:

Creating a Trust Fund for the Indigenous Community

Establishing such mechanism will not only address the issue of company’s commitment towards
the development and progress of the indigenous community, it also answers the sustainability of
the company’s assistance to be given to the community. Having this set up, the royalties for the
traditional knowledge in essence extracted from the shrub will not be a dole out but rather a
capital for decent projects for the benefit of all. This can also lead to independence on the part of
the community hence hopefully becomes a springboard for the growth and progress of the all in

15
Convention on Biodiversity United Nation, 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, (2011) 8.

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the community. If properly handled, the monetary compensation can be a tool for the community
to be sustainable.

Engaging the Indigenous People in the Business Process

It is a wise decision on the part of the company to employee the indigenous people. Aside from it
is a noble decision to do, it helps the company lessen additional cost for training of outsider.
Because of their knowledge, it will benefit the company as the business process and the
development of the product will be easier compared in hiring outsiders. The indigenous people
through the TK will have no issue in maximising the benefit of the shrub. In this set up, both the
stakeholders will be benefited from the TK of the essence extracted.