208 Miri (Margaret) Raven and Daniel Robinson
While Australia had colonial contact with the French and Dutch, it was the
English who established the landmass, and its peoples, as a colony of England.
Australia is an island nation state, which federated as a nation in 1901, with six
states, three internal territories and seven external territories. At the time of
Australian colonisation in 1788, there were between 250 and 750 languages spoken
by Indigenous peoples, and more than 500 first nations (Arthur & Morphy, 2019).
Despite the existence of Indigenous peoples prior to the arrival of the British,
Australia was founded on the idea of terra nullius (“land belonging to no one”).
Unlike in Vanuatu and Cook Islands, colonisation specifically sought to remove
people from their land. Australian government policies and procedures to remove
children from their families and country (known as the Stolen Generations) have
substantially impacted Indigenous peoples’ relationships with their own lands and
seas and families. Indigenous peoples, in the earlier days of the federation, were
excluded from the national census and voting in elections until 1967.
The Legal Contexts
While Australia considers itself a leader in the Pacific, it lags behind other nation
states in the region in implementing the Nagoya Protocol. Australia, a signatory
to the protocol, is yet to ratify it. Vanuatu and Cook Islands have both introduced
legislation to implement the Nagoya Protocol.
Vanuatu
Vanuatu ratified the Nagoya Protocol in 2014 and is now implementing it through
operation of the Biodiversity Advisory Council (BAC), established under sections 29–34 of the amended Environmental Protection and Conservation Act
(Vanuatu Government, 2014)
4 . The ABS processes under the Nagoya Protocol
operate under this Act, and the BAC issues permits to researchers who intend to
collect and study biological resources (and associated knowledge). B enefit-sharing
conditions are also required to be negotiated with provider communities for
both academic and commercial research, with academic research typically sharing non-monetary benefits, while commercial research would usually include
monetary benefits.
The government has also recently developed and passed the Protection of
Traditional Knowledge and Expressions of Culture Act No. 21 of 2019
5 . This Act
does not specifically mention the use of cultural protocols. However, the scope
of the Act (Article 4(1)) is such that traditional kastom (the Bislama term for custom) owners have exclusive rights to traditional knowledge to inter alia control,
exploit and use; grant prior informed consent to use traditional knowledge and
to access it on mutually agreed terms; and prevent misappropriation and granting
of unauthorised intellectual property rights. Additionally, the establishment of
“The Traditional Knowledge and Expressions of Culture Authority” (TKECA),
under the Act, provides an avenue for use of community customary protocols (or
While Australia had colonial contact with the French and Dutch, it was the
English who established the landmass, and its peoples, as a colony of England.
Australia is an island nation state, which federated as a nation in 1901, with six
states, three internal territories and seven external territories. At the time of
Australian colonisation in 1788, there were between 250 and 750 languages spoken
by Indigenous peoples, and more than 500 first nations (Arthur & Morphy, 2019).
Despite the existence of Indigenous peoples prior to the arrival of the British,
Australia was founded on the idea of terra nullius (“land belonging to no one”).
Unlike in Vanuatu and Cook Islands, colonisation specifically sought to remove
people from their land. Australian government policies and procedures to remove
children from their families and country (known as the Stolen Generations) have
substantially impacted Indigenous peoples’ relationships with their own lands and
seas and families. Indigenous peoples, in the earlier days of the federation, were
excluded from the national census and voting in elections until 1967.
The Legal Contexts
While Australia considers itself a leader in the Pacific, it lags behind other nation
states in the region in implementing the Nagoya Protocol. Australia, a signatory
to the protocol, is yet to ratify it. Vanuatu and Cook Islands have both introduced
legislation to implement the Nagoya Protocol.
Vanuatu
Vanuatu ratified the Nagoya Protocol in 2014 and is now implementing it through
operation of the Biodiversity Advisory Council (BAC), established under sections 29–34 of the amended Environmental Protection and Conservation Act
(Vanuatu Government, 2014)
4 . The ABS processes under the Nagoya Protocol
operate under this Act, and the BAC issues permits to researchers who intend to
collect and study biological resources (and associated knowledge). B enefit-sharing
conditions are also required to be negotiated with provider communities for
both academic and commercial research, with academic research typically sharing non-monetary benefits, while commercial research would usually include
monetary benefits.
The government has also recently developed and passed the Protection of
Traditional Knowledge and Expressions of Culture Act No. 21 of 2019
5 . This Act
does not specifically mention the use of cultural protocols. However, the scope
of the Act (Article 4(1)) is such that traditional kastom (the Bislama term for custom) owners have exclusive rights to traditional knowledge to inter alia control,
exploit and use; grant prior informed consent to use traditional knowledge and
to access it on mutually agreed terms; and prevent misappropriation and granting
of unauthorised intellectual property rights. Additionally, the establishment of
“The Traditional Knowledge and Expressions of Culture Authority” (TKECA),
under the Act, provides an avenue for use of community customary protocols (or