210 Miri (Margaret) Raven and Daniel Robinson
biochemical resources” was endorsed to promote consistency of regulations
(Department of Environment, 2014). ABS requirements of the Convention
on Biological Diversity are included in the Environmental Protection and
Biodiversity Conservation Act (EPBC) 1999 Regulations, Part 8A. These regulations apply to Commonwealth land and sea areas only, limiting the scope of
the regulations significantly (Department of Environment, 2014). Importantly,
these regulations require PIC where access is sought to Indigenous people’s
land (Article 8A 10(1), EPBC Regs) and also stipulate (Article 8A.08, EPBC
Regs) that PIC and benefit-sharing are required for access where Indigenous
knowledge is used for research and development (R&D) (Robinson & Raven,
2017). States and Territories in Australia, following the development of the
Commonwealth EPBC regulations, gradually implemented ABS provisions.
Further legal and policy developments are likely if Australia ratifies the Nagoya
Protocol (Robinson & Raven, 2017).
Indigenous peoples’ rights to land are recognised through native title
(through the Native Title Act 1993) and land rights legislation at the State and
territory jurisdiction, which includes, for example, the Northern Territory
Land Rights Legislation 1976. Native title is the federal Australian mechanism for recognising Indigenous or customary laws in Australia related to
land, waters, and by association, plants and animals. Although highly flawed,
native title is one of the mechanisms through which Aboriginal and Torres Strait Islands peoples are given recognised rights in land and resources,
and which is therefore relevant for the governance of biological resources.
Land rights acts (administered by the states) are the other mechanisms. As we
explain in another article (Robinson & Raven, 2020), native title determinations and Aboriginal land rights have relevance for establishing whether native
title holders (or claimants), or land holders, might be genetic resource “access
providers” as recognised by the Northern Territory Biological Resources Act
(2006) and the Commonwealth Environmental Protection and Biodiversity
Conservation Regulations (2000), Part 8A.
Protocols: What They Are and Can Do
While the term “biocultural community protocols” has become the norm
for referring to the types of arrangements, standards and rules in biodiversity
conservation, protocols are used in various other contexts. Through Indigenous
research, protocols are positioned as a mechanism to remedy the misappropriation of Indigenous knowledge. They have been conceptualised as etiquettes or
guides (Argumedo et al., 2011; Bowrey, 2006; Garwood-Houng, 2005; Nakata
et al., 2005); rules or rules of engagement; standards; prescriptive tools; rightsbased approaches to affirm self-determination; agents of change; and form and
source of private laws (Australia Council for the Arts, 2007a, 2007b; Carter,
2010; Dunbar & Scrimgeour, 2005; Janke, 1998; Janke and Dawson, 2012; Jonas
et al., 2010).
biochemical resources” was endorsed to promote consistency of regulations
(Department of Environment, 2014). ABS requirements of the Convention
on Biological Diversity are included in the Environmental Protection and
Biodiversity Conservation Act (EPBC) 1999 Regulations, Part 8A. These regulations apply to Commonwealth land and sea areas only, limiting the scope of
the regulations significantly (Department of Environment, 2014). Importantly,
these regulations require PIC where access is sought to Indigenous people’s
land (Article 8A 10(1), EPBC Regs) and also stipulate (Article 8A.08, EPBC
Regs) that PIC and benefit-sharing are required for access where Indigenous
knowledge is used for research and development (R&D) (Robinson & Raven,
2017). States and Territories in Australia, following the development of the
Commonwealth EPBC regulations, gradually implemented ABS provisions.
Further legal and policy developments are likely if Australia ratifies the Nagoya
Protocol (Robinson & Raven, 2017).
Indigenous peoples’ rights to land are recognised through native title
(through the Native Title Act 1993) and land rights legislation at the State and
territory jurisdiction, which includes, for example, the Northern Territory
Land Rights Legislation 1976. Native title is the federal Australian mechanism for recognising Indigenous or customary laws in Australia related to
land, waters, and by association, plants and animals. Although highly flawed,
native title is one of the mechanisms through which Aboriginal and Torres Strait Islands peoples are given recognised rights in land and resources,
and which is therefore relevant for the governance of biological resources.
Land rights acts (administered by the states) are the other mechanisms. As we
explain in another article (Robinson & Raven, 2020), native title determinations and Aboriginal land rights have relevance for establishing whether native
title holders (or claimants), or land holders, might be genetic resource “access
providers” as recognised by the Northern Territory Biological Resources Act
(2006) and the Commonwealth Environmental Protection and Biodiversity
Conservation Regulations (2000), Part 8A.
Protocols: What They Are and Can Do
While the term “biocultural community protocols” has become the norm
for referring to the types of arrangements, standards and rules in biodiversity
conservation, protocols are used in various other contexts. Through Indigenous
research, protocols are positioned as a mechanism to remedy the misappropriation of Indigenous knowledge. They have been conceptualised as etiquettes or
guides (Argumedo et al., 2011; Bowrey, 2006; Garwood-Houng, 2005; Nakata
et al., 2005); rules or rules of engagement; standards; prescriptive tools; rightsbased approaches to affirm self-determination; agents of change; and form and
source of private laws (Australia Council for the Arts, 2007a, 2007b; Carter,
2010; Dunbar & Scrimgeour, 2005; Janke, 1998; Janke and Dawson, 2012; Jonas
et al., 2010).