Biocultural Rights and Protocols in the Pacific 211
Through our preliminary research where they are used for biodiversity
conservation goals, community protocols appear as tools that expand the regulatory toolbox for implementing the Nagoya Protocol, and assist with connecting
Indigenous law and state law relating to the governance and management of
Indigenous knowledge and totemic species. They can be derived from existing cultural norms and customs or be newly constructed to serve a particular purpose. In Australia, our work on “protocols” has been heavily focused
on Aboriginal enterprises that are actively “biotrading” plant species that have
been of interest to many larger companies for R&D, and in which there have
been issues of potential “biopiracy” (Robinson, 2010). At the request of these
Aboriginal enterprises and communities, we are advising on protocols and
agreement- making as part of the PIC and ABS process.
We are working with the Vanuatu and Cook Islands governments to le verage
better protections for Indigenous knowledge, and to include legal recognitions of customary laws and community protocols. However, we note that in
Vanuatu and Cook Islands, some progress is being made towards implementing the Nagoya Protocol. Vanuatu has ratified the protocol and introduced the
Traditional Knowledge Act (2020). While Cook Islands is yet to ratify the Nagoya
Protocol, they are developing ABS legislation that will support implementation
once they have ratified. Both the ABS and TK legislation could be utilised to
recognise and respect BCPs as part of the ABS PIC process. Importantly, Cook
Islands has signed and been active in ABS processes with its own UNDP-GEF
ABS programme
6 relating to the CIMTECH agreement (bone healing based on
traditional medicines).
BCPs have the appearance of hybrid instruments in biodiversity conservation.
Their hybridity derives from incorporating a mix of traditional customary law,
research ethical principles and ABS framing related to notions of consent and
customary rights. Their origin in customary law means that protocols are able
to transmit customary rules and regulations into spaces and places that would
ordinarily exclude or dismiss customary law. The very nature of protocols, as
hybrid flexible instruments, is what actually enables this to occur. In Vanuatu, for
example, which is attempting to codify aspects of customary law into protocol
formats, it means that customary law over biological resources will be recognised by state law. While protocols are non-binding tools, the way that Vanuatu
legislation recognises them arguably turns them into quasi-binding legal instruments. The extent to which they are also able to operate as ethical instruments,
in formal ethical research processes, remains to be seen.
Indigenous knowledge systems are often defined as including the idea that
Indigenous peoples have relational obligations to each other and nature (Berkes
& Berkes, 2009; Pierotti & Wildcat, 2000; Whyte, 2013). Relational obligations
derive from customary rules, laws, norms and protocols which act as governance
arrangements over Indigenous knowledge (Christie, 2006; Janke, 2008; Mackay,
2009). In Australia, for example, customary law has figured in the high-profile
copyright dispute through the Bulun Bulun & Anor v R & T Textiles Pty Ltd
Through our preliminary research where they are used for biodiversity
conservation goals, community protocols appear as tools that expand the regulatory toolbox for implementing the Nagoya Protocol, and assist with connecting
Indigenous law and state law relating to the governance and management of
Indigenous knowledge and totemic species. They can be derived from existing cultural norms and customs or be newly constructed to serve a particular purpose. In Australia, our work on “protocols” has been heavily focused
on Aboriginal enterprises that are actively “biotrading” plant species that have
been of interest to many larger companies for R&D, and in which there have
been issues of potential “biopiracy” (Robinson, 2010). At the request of these
Aboriginal enterprises and communities, we are advising on protocols and
agreement- making as part of the PIC and ABS process.
We are working with the Vanuatu and Cook Islands governments to le verage
better protections for Indigenous knowledge, and to include legal recognitions of customary laws and community protocols. However, we note that in
Vanuatu and Cook Islands, some progress is being made towards implementing the Nagoya Protocol. Vanuatu has ratified the protocol and introduced the
Traditional Knowledge Act (2020). While Cook Islands is yet to ratify the Nagoya
Protocol, they are developing ABS legislation that will support implementation
once they have ratified. Both the ABS and TK legislation could be utilised to
recognise and respect BCPs as part of the ABS PIC process. Importantly, Cook
Islands has signed and been active in ABS processes with its own UNDP-GEF
ABS programme
6 relating to the CIMTECH agreement (bone healing based on
traditional medicines).
BCPs have the appearance of hybrid instruments in biodiversity conservation.
Their hybridity derives from incorporating a mix of traditional customary law,
research ethical principles and ABS framing related to notions of consent and
customary rights. Their origin in customary law means that protocols are able
to transmit customary rules and regulations into spaces and places that would
ordinarily exclude or dismiss customary law. The very nature of protocols, as
hybrid flexible instruments, is what actually enables this to occur. In Vanuatu, for
example, which is attempting to codify aspects of customary law into protocol
formats, it means that customary law over biological resources will be recognised by state law. While protocols are non-binding tools, the way that Vanuatu
legislation recognises them arguably turns them into quasi-binding legal instruments. The extent to which they are also able to operate as ethical instruments,
in formal ethical research processes, remains to be seen.
Indigenous knowledge systems are often defined as including the idea that
Indigenous peoples have relational obligations to each other and nature (Berkes
& Berkes, 2009; Pierotti & Wildcat, 2000; Whyte, 2013). Relational obligations
derive from customary rules, laws, norms and protocols which act as governance
arrangements over Indigenous knowledge (Christie, 2006; Janke, 2008; Mackay,
2009). In Australia, for example, customary law has figured in the high-profile
copyright dispute through the Bulun Bulun & Anor v R & T Textiles Pty Ltd