Biocultural Rights and Protocols in the Pacific 209
BCPs). BCPs may play a role in assisting the Authority in its deliberations related
to Article 14(1) on the granting of bio-prospecting licences; to “consider and
determine applications that have elements of traditional knowledge and expressions of culture, for registration of ” intellectual property rights and research
based on this knowledge. Within the legislation, there is also a scope for the use
of BCPs to provide the basis through which communities can determine their
own process for granting consent and access. BCPs can potentially provide the
framework for this conversation and soft law setting.
Cook Islands
The Cook Islands Act of 1915 (Article 422) gave recognition to customary laws
and rules and made the following provision in relation to land: “Every title to
and interest in customary land shall be determined according to ancient custom and usage of the Natives of Cook Islands” (Boer, 1996, p. 30; Robinson &
Forsyth, 2016). The state in Cook Islands engages with custom partly through
the establishment of state-recognised customary institutions. For example, in
Cook Islands, the House of Ariki was established to represent the paramount
or high chiefs in 1966, followed by the Koutu Nui, a house for the sub-district
chiefs comprising mataiapo and rangatira, in 1972 (House of Ariki Act 1966, as
amended in 1972).
The government of Cook Islands has enacted the Traditional Knowledge Act
2013 to “give legal recognition to the rights in the traditional knowledge of
the traditional communities of Cook Islands” (preamble). The Act encourages
the registration of traditional knowledge by knowledge-holders, and its written
documentation although this practice is not something that would traditionally have occurred. It provides a range of rights, among them one that only
rights-holders of registered traditional knowledge have the right to use, transmit,
document or develop the knowledge in any way, whether commercial or not
(Article 7(1)). Registered traditional knowledge is protected in perpetuity, with
the rights being inalienable, and purporting not to limit or affect other intellectual property rights (Forsyth & Farran, 2015). The Traditional Knowledge Act
2013 anticipates multiple and overlapping registrations. If two or more registrations for ostensibly the same knowledge are made, then each applicant is able to
view the other application and must come to an agreement before registration is
accepted for protection under the law. This is an interesting legal adaptation of
mediation replacing or paralleling what would have occurred through customary
laws and norms (Robinson, 2014; Robinson & Forsyth, 2016).
Australia
As a federated state, aspects of biodiversity conservation are distributed across
national and State and Territory legislation. In 2002, the “Nationally consistent approach for access to and the utilization of Australia’s native genetic and
BCPs). BCPs may play a role in assisting the Authority in its deliberations related
to Article 14(1) on the granting of bio-prospecting licences; to “consider and
determine applications that have elements of traditional knowledge and expressions of culture, for registration of ” intellectual property rights and research
based on this knowledge. Within the legislation, there is also a scope for the use
of BCPs to provide the basis through which communities can determine their
own process for granting consent and access. BCPs can potentially provide the
framework for this conversation and soft law setting.
Cook Islands
The Cook Islands Act of 1915 (Article 422) gave recognition to customary laws
and rules and made the following provision in relation to land: “Every title to
and interest in customary land shall be determined according to ancient custom and usage of the Natives of Cook Islands” (Boer, 1996, p. 30; Robinson &
Forsyth, 2016). The state in Cook Islands engages with custom partly through
the establishment of state-recognised customary institutions. For example, in
Cook Islands, the House of Ariki was established to represent the paramount
or high chiefs in 1966, followed by the Koutu Nui, a house for the sub-district
chiefs comprising mataiapo and rangatira, in 1972 (House of Ariki Act 1966, as
amended in 1972).
The government of Cook Islands has enacted the Traditional Knowledge Act
2013 to “give legal recognition to the rights in the traditional knowledge of
the traditional communities of Cook Islands” (preamble). The Act encourages
the registration of traditional knowledge by knowledge-holders, and its written
documentation although this practice is not something that would traditionally have occurred. It provides a range of rights, among them one that only
rights-holders of registered traditional knowledge have the right to use, transmit,
document or develop the knowledge in any way, whether commercial or not
(Article 7(1)). Registered traditional knowledge is protected in perpetuity, with
the rights being inalienable, and purporting not to limit or affect other intellectual property rights (Forsyth & Farran, 2015). The Traditional Knowledge Act
2013 anticipates multiple and overlapping registrations. If two or more registrations for ostensibly the same knowledge are made, then each applicant is able to
view the other application and must come to an agreement before registration is
accepted for protection under the law. This is an interesting legal adaptation of
mediation replacing or paralleling what would have occurred through customary
laws and norms (Robinson, 2014; Robinson & Forsyth, 2016).
Australia
As a federated state, aspects of biodiversity conservation are distributed across
national and State and Territory legislation. In 2002, the “Nationally consistent approach for access to and the utilization of Australia’s native genetic and