Biocultural Rights and Protocols in the Pacific 205
pharmaceutical, beauty products and food industries. Past and current practices of
collecting biological resources and associated traditional knowledge share some
similarities, but also differ in significant ways. Collecting Indigenous knowledge
of plants and placing them in the public domain, via journal articles and other
mediums, remain. The difference, for some public domain placements, is that
they are put in the public domain by Indigenous peoples themselves. These are
defensive approaches to ward off the “theft” of their knowledge, with the idea
being that public domain information cannot be claimed by others under intellectual property laws. But some collecting is undertaken without necessary biodiversity approvals (such as permits and free prior informed consent), or where
approvals do not protect Indigenous peoples’ rights to their own knowledge.
These instances of “biopiracy” are difficult to track and monitor as they are often
known about through word of mouth, approvals are subject to confidentiality
agreements and getting access to these approval documents is difficult because
they are subject to commercial-in-confidence or government regulations.
Additionally, some collections, particularly those for universities and other
research institutions, now have an ethical research framework which stipulates
the requirements for prior informed consent for the collecting of this knowledge.
Some of these, although updated in more recent years, pre-date the Nagoya
Protocol. In Australia, this includes the Australian Institutes for Aboriginal
and Torres Strait Islander Studies’ (AIATSIS) Code of Ethics for Aboriginal and
Torres Strait Islander Research (and what was previously the AIATSIS Guidelines
2012; AIATSIS, 2020) and the National Health and Medical Research Council’s
(NHMRC) National Statement on Ethical Conduct in Human Research (NHMRC,
2018b) and their Ethical conduct in research with Aboriginal and Torres Strait Islander
Peoples and communities: Guidelines for researchers and stakeholders (NHMRC, 2018a).
They all stipulate the requirements for researchers, that works with Aboriginal
and Torres Strait Islander people and their data, to seek ethics review through a
human research ethics committee. While these mechanisms can protect Indigenous knowledge of biological resources, it only does so for Australian research
institutions, or those who access funding through the NHMRC Australia. Even
with the existence of such mechanisms, there are research organisations which do
not require ethics to operate in Australia (as their funding is sourced elsewhere).
Confounding this is that ethical frameworks ( just like international law
making) can’t always keep up with the pace of technology. Biodiversity and
biotechnology research have seen an uptake in technologies such as phytochemical screening (Al Rashid et al., 2019) and next-generation genomic sequencing (NGS) (Escalante et al., 2014), and encompass various methods such as
high-throughput DNA sequencing (HTS) (Gao et al., 2012) and environmental
DNA sequencing (eDNA) (Huerlimann et al., 2020), which are being clustered
together in policy CBD policy circles as “digital sequencing information” (DSI)
(Laird & Wynberg, 2018).
Additionally, NGS and DSI technology is no longer confined to the laboratory
and can be undertaken through portable screening (Watsa et al., 2020). While
pharmaceutical, beauty products and food industries. Past and current practices of
collecting biological resources and associated traditional knowledge share some
similarities, but also differ in significant ways. Collecting Indigenous knowledge
of plants and placing them in the public domain, via journal articles and other
mediums, remain. The difference, for some public domain placements, is that
they are put in the public domain by Indigenous peoples themselves. These are
defensive approaches to ward off the “theft” of their knowledge, with the idea
being that public domain information cannot be claimed by others under intellectual property laws. But some collecting is undertaken without necessary biodiversity approvals (such as permits and free prior informed consent), or where
approvals do not protect Indigenous peoples’ rights to their own knowledge.
These instances of “biopiracy” are difficult to track and monitor as they are often
known about through word of mouth, approvals are subject to confidentiality
agreements and getting access to these approval documents is difficult because
they are subject to commercial-in-confidence or government regulations.
Additionally, some collections, particularly those for universities and other
research institutions, now have an ethical research framework which stipulates
the requirements for prior informed consent for the collecting of this knowledge.
Some of these, although updated in more recent years, pre-date the Nagoya
Protocol. In Australia, this includes the Australian Institutes for Aboriginal
and Torres Strait Islander Studies’ (AIATSIS) Code of Ethics for Aboriginal and
Torres Strait Islander Research (and what was previously the AIATSIS Guidelines
2012; AIATSIS, 2020) and the National Health and Medical Research Council’s
(NHMRC) National Statement on Ethical Conduct in Human Research (NHMRC,
2018b) and their Ethical conduct in research with Aboriginal and Torres Strait Islander
Peoples and communities: Guidelines for researchers and stakeholders (NHMRC, 2018a).
They all stipulate the requirements for researchers, that works with Aboriginal
and Torres Strait Islander people and their data, to seek ethics review through a
human research ethics committee. While these mechanisms can protect Indigenous knowledge of biological resources, it only does so for Australian research
institutions, or those who access funding through the NHMRC Australia. Even
with the existence of such mechanisms, there are research organisations which do
not require ethics to operate in Australia (as their funding is sourced elsewhere).
Confounding this is that ethical frameworks ( just like international law
making) can’t always keep up with the pace of technology. Biodiversity and
biotechnology research have seen an uptake in technologies such as phytochemical screening (Al Rashid et al., 2019) and next-generation genomic sequencing (NGS) (Escalante et al., 2014), and encompass various methods such as
high-throughput DNA sequencing (HTS) (Gao et al., 2012) and environmental
DNA sequencing (eDNA) (Huerlimann et al., 2020), which are being clustered
together in policy CBD policy circles as “digital sequencing information” (DSI)
(Laird & Wynberg, 2018).
Additionally, NGS and DSI technology is no longer confined to the laboratory
and can be undertaken through portable screening (Watsa et al., 2020). While