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Customary laws and community protocols in the
Pacific: Next steps under the Nagoya Protocol
A/Prof Daniel Robinson (UNSW)
Dr Margaret Raven (Macquarie Uni)
Butmas Village, Santo, Vanuatu; Raui custom marine protected zones, Cook Islands
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Contents
• Nagoya Protocol
- Traditional knowledge and customary law
• Indigenous knowledge futures – the project
• Patent Landscaping – how the process started
- Gumbi gumbi
• Biocultural community protocols
• Next steps
• Collaborations!
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Legal certainty and transparency
Nagoya Protocol on ABS
2010:
• For providers: ensuring benefit-sharing
once GR leave the provider country
• Preventing misappropriation of GR and
associated traditional knowledge (aTK)
• For users: providing for clear and
transparent procedures for access to GR
and aTK
• In force since October 2014
• Currently (July 2018) 105 Parties
(incl. 5 Parties in the Pacific
region: Samoa, Fiji, FSM, Palau,
Vanuatu)
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Art. 7 – Access to Traditional Knowledge (TK) associated with genetic
resources (GRs)• In accordance with domestic law based on prior informed consent (PIC)
of and mutually agreed terms (MAT) with indigenous and local
communities (ILCs)
Art. 12.3 – TK associated with GR• In accordance with domestic law take into consideration ILCs customary
laws, community protocols and procedures with respect to aTK
• With the effective participation of ILCs inform potential users of aTK about
their obligations for access and benefit sharing
• Parties shall support the development of
• Community protocols for access to aTK
• Minimum requirements for MAT ensuring BS
• Model contractual clauses for BS with ILCs
• Not restrict customary use and exchange of genetic resources and aTK
within and amongst ILCs.
The Nagoya Protocol: Access to TK
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Indigenous Knowledge Futures:
• 5 Year Australian Research Council Discovery Project
• 5 years and 3 countries – Australia (starting with Kakadu
Plum and Gumbi Gumbi), Vanuatu (with VKS), Cook
Islands (Koutu Nui, Min Cultural Devt)
• Futures because – knowledge is not static, the
political/legal space is moving, promotion as important
as protection.
• Bio-cultural approach – recognising links between
culture and country, Dreamings or custom and
nature/plants/animals.
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• Patent landscaping/mapping of
321 Australian native ‘economic
plants’ with known Indigenous uses
(Robinson and Raven, 2017)
• Use of ethnobotanical texts
(appropriated knowledge) to
identify further (mis)appropriations
• 1300+ patents and applications
identified
• Many mentioned Indigenous
knowledge existing for plants found
across Asia and the Pacific region,
showing similarities in indigenous
knowledge between countries
Patents, plants and knowledge
Ancient cultural landscape, Ubirr, Kakadu
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• Prairie Creek - The Plains Homestead water hole on the Prairie river, is
the creation place for the Yirendali people, it is associated with the
ceremonial bush medicine, common name gumbi gumbi. It is the story
about the gumbi gumbi bush spirit, a women who lived alone by the
water hole, and one day while out gathering food, she came across a
male bush spirit. They courted and fell in love, and when the gumbi
gumbi spirit lady fell pregnant, she gave birth, and the baby came out of
the seed pod. This was the birth of the Moongaburra people, of the
Yirendali people.
• James Hill (Yirendali), cited in Constable and Love 2015, p34
• What other plants or animals have cultural significance?
• How does custom control or govern use and ownership of
species?
Gumbi Gumbi: Stories as a source of custom:
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Pacific Patents:
• Piper methysticum (Kava): 129 Patent Families 197
Patents. Distribution – Pacific, across to Indonesia. TK
from Polynesia and Melanesia. Extensive ‘noble’
varieties from Vanuatu.
• Terminalia catappa (Indian Almond): 49 Patent
Families 100 Patents. Distribution wide across tropics,
significant TK in the Pacific.
• Hibiscus tiliaceus: 33 Patent families, 48 Patents.
Weedy growth, distribution wide across tropics. Some
TK specific to Cook Islands (and Tahiti?).
• Much more to come from Melanesia and
Polynesia!!
Photos By A16898 - CC BY-SA 3.0,
https://commons.wikimedia.org/w/index.php?curid=16660602, http:
//www.hear.org/starr/plants/images/image/?q=020803-0107
https://commons.wikimedia.org/w/index.php?curid=16660602http://www.hear.org/starr/plants/images/image/?q=020803-0107
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Kava Custom and rights?
• In Vanuatu… individuals (and their families and lineages) may claim overlapping rights to kava
variet[ies], and would deny common cultural heritage. There are also (chiefly) titled versus
untitled, and male versus female, claims to use and exchange kava. On the island of Tanna, for
example, certain families have the right to consume specially grown and decorated kava tapuga at
festivals celebrating boys’ circumcisions (Lindstrom, 2009, p299)
• Unlike Kalo (Colocasia esculenta L.), there is no one well known and documented story of how
`Awa came to be in Hawai`i. Neither are there any known chants that recall which voyage or which
voyager brought `Awa to Hawai`i. It should not be assumed that `Awa came to Hawai`i on a single
migration, but more likely several times throughout the Polynesian era. There are, however,
several chants that contain references that indicate that `Awa came to Hawai`i from some land far
away. Accompanying these references is often the mention of the gods Käne and Kanaloa, the
famous `Awa drinkers (Winter, 2004, p24)
• What does it mean (in custom terms) to patent kava?
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• Community protocols aim to
control incoming researcher/
company/ third party behaviour
and practices’.
• Protocol for engagement,
research/work with community
• ‘Bridging tools’ between custom
and state law.
• Biocultural statement of values,
intent and action from indigenous
peoples and local communities
(IPLCs)
What are biocultural community protocols:
Big Bay, Santo, Vanuatu
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What are biocultural community protocols:
• Enables legal recognition (under
implementation of Nagoya), as
attachments to contracts or under
sui generis laws.
• Examples are mostly from Africa
and Asia. E.g. Gunis
• Usual process for development –
data collection,
workshopping/forum, then
community comment, then publish. BCP of the Guni Traditional medicinefarmers of Mewar includes: bio-
spirituality, FPIC, sustainable use,
ref to their rights under Indian laws,
etc.
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Next steps:
• Fieldwork relating to
plant/animal species
and custom in
Vanuatu and Cook
Islands
• Development of
community protocols
where requested
Vathe Conservation Area, Santo, Vanuatu
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Open to collaborations!
• Aside from the ARC Discovery I am involved in the following Pacific roles:
- Regional coordinator for the Access and Benefit-Sharing Capacity
Development Initiative (ABS Initiative) which has 5 years of Pacific
funding for ABS, TK, and Indigenous engagement activities.
- Academic Lead for Pacific – UNSW Institute for Global Development,
strategic coordination of Pacific research and activities at UNSW.
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Funders/Partners – Direct and Indirect
Core Agencies/PartnersIndirect Partners
Funded by:
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Sources for Further information
• ABS Initiative http://www.abs-
initiative.info/
• Swiss ABS management tool:
https://www.iisd.org/pdf/2007/abs_mt.pdf
• IUCN ABS books, manuals etc:
https://www.iucn.org/theme/environment
al-law/our-work/access-and-benefit-
sharing
http://www.abs-initiative.info/https://www.iisd.org/pdf/2007/abs_mt.pdfhttps://www.iucn.org/theme/environmental-law/our-work/access-and-benefit-sharing
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References:
• Constable, J. and Love, K. (2015) Aboriginal water values Galilee subregion (Qld), a report for the
Bioregional Assessment Programme.
• Lindstrom, L. (2009) ‘Kava Pirates in Vanuatu?’ International Journal of Cultural Property, Volume
16, Issue 3, pp. 291-308
• Robinson, D.F. (2015) Biodiversity, Access and Benefit-Sharing: Global Case Studies, Routledge,
Oxon.
• Robinson, D.F. and Raven, M. (2017) ‘Identifying and Preventing Biopiracy in Australia: Patent
trends for plants with Aboriginal uses’, Australian Geographer, 48:3, 311-331
• Version of the paper available as Public Submission through IP Australia:
http://www.ipaustralia.gov.au/about-us/public-consultations/Indigenous_Knowledge_Consultation/
• Robinson D; Raven M; Hunter J, (2018), 'The limits of ABS laws: Why gumbi gumbi and other
bush foods and medicines need specific indigenous knowledge protections', in Lawson, C. and
Adhikari, K. (eds) Biodiversity, Genetic Resources and Intellectual Property: Developments in
Access and Benefit Sharing, pp. 185 – 207.
• Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits
Arising from their Utilization to the Convention on Biological Diversity (2010):
https://www.cbd.int/abs/text/
• Winter, K. (2004) Hawai’ian `Awa Piper methysticum. A study in ethnobotany. MSc Thesis,
University of Hawai’i.
http://www.ipaustralia.gov.au/about-us/public-consultations/Indigenous_Knowledge_Consultation/https://www.cbd.int/abs/text/