Patenting the Kakadu Plum and the Marjarla Tree: Biodiscovery, Intellectual Property and Indigenous Knowledge
Holcombe, S and Janke, T. 2012. 'Patenting the Kakadu Plum and the Marjarla tree: biodiscovery, intellectual property and Indigenous Knowledge'. Chapter 11, pp 293-319. In [eds.] M. Rimmer and A. McLennan. Intellectual Property and Emerging technologies: The New Biology, Edward Elgar UK and USA
16 Pages Posted: 26 Mar 2013
Date Written: 2012
The Australian government’s 2009 endorsement of the ‘Declaration on the Rights of Indigenous Peoples’ brings a renewed recognition and focus on Indigenous knowledge ownership in the area of Indigenous cultural and intellectual property (ICIP). However, embedding this rights discourse into the action and language of natural resource management has not been taken up by the Australian government, as yet. Australia’s federal system, under the Environmental Protection and Biological Resources Act 1999 (Cwth) is ad-hoc with several states and Territories creating their own biological resources acts and regional groups their own management processes. A recent government Inquiry into the EPBC Act found that ‘each jurisdiction has different rules and requirements for accessing biological resources’ and that the ‘Nationally Consistent Approach’ policy developed in 2000 ‘should be reinvigorated’ (that was known as the Hawke Inquiry 2009:236).
Prior to this Inquiry, in 2008, both of the authors were engaged by the Natural Resource Management Board of the Northern Territory to develop resources and tools to ensure that when ethnobiological knowledge is integrated into resource management programs and in research generally in that jurisdiction, it is done ethically and equitably. This paper will discuss several of the challenges we encountered, which accord with the findings of the recent Hawke Inquiry, and some of the recommendations we made for change which went beyond the Inquiry’s findings. To shed light on the issues we provide several case studies of the management of traditional knowledge in relation to biological resources, such as the Mary Kay Kakadu Plum Patent Opposition and the Marjarla patent . Finally we also provide some critical comment on the recent ABS Nagoya Protocol and find common ground with the growing interest in the development of bio-cultural community protocols to assert local Indigenous priorities using a rights based approach.
Keywords: Australian Indigenous Ecological Knowledge, intellectual property
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