1
Bioprospecting and Indigenous Knowledge in Australia: Valuing Indigenous Spiritual
Knowledge and its Implications for Integrated Legal Regimes1
By John Hunter & Chris Jones
Introduction:
This paper discusses issues associated with the capacity of western law in
understanding and protecting indigenous knowledge related to the bioprospecting of
indigenous medical knowledge in an Australian context. More specifically the focus is
upon indigenous spiritual knowledge. It is suggested that central to this project is the
right of indigenous peoples in self-determination, self-identification and the right of
verifying the authenticity of representations about such knowledge.
The Julayinbul Statement on Indigenous Intellectual Property Rights (1993),
originating from an Australian Indigenous conference in Jingarra states:
Indigenous Peoples and Nations share a unique spiritual and cultural
relationship with Mother Earth which recognises the inter-dependence of the
total environment and is governed by the natural laws which determine our
perceptions of intellectual property.
Inherent in these laws and integral to that relationship is the right of
Indigenous Peoples and Nations to continue to live within and protect, care
for, and control the use of that environment and of their knowledge.
Within the context of this Statement Indigenous Peoples and Nations
reaffirm their right to define for themselves their own intellectual property,
acknowledging their own self-determination and the uniqueness of their
particular heritage.
Within the context of this Statement Indigenous Peoples and Nations also
declare that we are capable of managing our intellectual property ourselves,
but are willing to share it with all humanity provided that our fundamental
rights to define and control this property are recognised by the international
community.
1
There is a conference being held on Indigenous Knowledge and Bioprospecting at Macquarie
University, Sydney, Australia in Feburary, 2004. For details see the conference website at:
http://laurel.ocs.mq.edu.au/~cjone005/index_conference.htm
2
These concerns require a genuine consultation between cultures. This is not only
reflected in the subject matter of this paper, but also in that the paper is co-authored in
a research relationship between an indigenous author and an author of western cultural
background. Accompanying this co-authored paper is a painting created by the
indigenous author that is representative of a number of the issues associated with
understanding indigenous knowledge that are reflected in the paper. The
sophistication and multiple levels of knowledge represented in the painting represent a
comprehensive system of indigenous knowledge that would take a number of years of
education to appreciate. Although it will not be immediately obvious to western
viewers of the painting, it actually represents a more comprehensive expression of
knowledge than this paper itself.
Such a context is also symbolic of discussions in the paper about the capacity of law
in general and Intellectual Property Rights (IPR) specifically to understand and protect
indigenous spiritual knowledge.
It is valuable for persons from western contexts of law to become concerned with the
building of bridges between cultures that is required in such a process. Enduring
bridges appropriate to such a relationship require the infusion of a number of spiritual
virtues including humility, integrity, patience, transparency, respect, and
trustworthiness. These spiritual principles must be applied in a framework honouring
the sacred obligations associated with becoming a custodian of particular forms of
knowledge.
On a material level, those concerned with building economic bridges through which
valuable transfers of knowledge can occur should be ultimately concerned with
ensuring such spiritual concerns of indigenous people are considered and applied. The
degree to which this is authentically engaged will determine the degree to which
indigenous communities feel confident in sharing their valuable knowledge across that
bridge. Alternately, many indigenous peoples feel a sacred obligation to respect the
sources of that knowledge to the degree that they would prefer letting it ‘return to the
earth and the spirit world’, rather than be misused and denigrated. For indigenous
people the apparent physical loss of such knowledge does not mean it is gone forever.
Such knowledge will continue to exist in the invisible world, hidden from the eyes of
all, until people of respect and wisdom are found worthy enough to be given its gift
again.
The ultimate benefit of a genuine engagement with indigenous peoples and their
knowledge represents a great gift to humanity. It is argued that this represents the
greatest opportunity for the creation of a legal and social culture that manifests a true
ethic of ecologically sustainable development, and is essential for the survival of the
human species.
Structure of Paper:
The method of this paper is too provide a broad multi-disciplinary and inter-cultural
overview of the subject matter in order to encourage others to engage in their own
3
particular investigations of such neglected areas. Therefore it is conceded that in
offering a breadth of vision, attention to detail is a necessary compromise.
Part 1 of this paper will begin by reviewing the context of the bioprospecting industry
of Australia and its relationship to indigenous communities. Issues associated with the
development of a national standard of ethical bioprospecting will be engaged.
Discussion will focus on the influences towards this development from intellectual
property law, economic development policy, and the application of international law.
Throughout, a brief analysis of the Australian bioprospecting industry will be offered
that touches upon its past, current and future trends.
Part 2 of the paper will be concerned with examining a selection of indigenous
concerns related to the topic. The ancient history of bioprospecting will be revisited.
Implications of this historical review will be followed in demonstrating the
importance of the rights to indigenous self-determination, self-identification, and the
right to verify the authenticity of 3rd party representations of indigenous knowledge. A
summary will follow of more specific concerns of the current inadequacy of current
IPR to protect indigenous knowledge. Finally it will be suggested that there are three
levels of value that need to be addressed if a long-term solution to IPR that adequately
addresses the needs and concerns of indigenous people is to occur.
Part 3 of the paper will focus upon some of the requirements for understanding
indigenous knowledge that are rarely acknowledged or discussed in IPR circles. The
first section will address the importance of acknowledging the impaired perceptive
capacity of western law to understand indigenous spiritual knowledge through
analogy. The next section will review how this is manifested in an inappropriate legal
context of ‘deep seated secularism’ and the dangers of this approach to indigenous
spiritual knowledge. Following this we will review a more academic historical and
philosophical analysis represented in the earlier visual analogy that will attempt to
offer a representative attempt to discuss the unnecessary nature of such legal visual
impairment. Finally, some of the current weaknesses of IPR law in appropriately
protecting indigenous knowledge will be specifically traced to their historical causes
in the processes that have occurred since the enlightenment. It will be demonstrated
that the dichotomies represented in western metaphysics including the separation of
spirit and matter were unnecessary and can be addressed appropriately. Ultimately
from many of an indigenous point of view, this is a civilisation that has largely lost its
relational capacity due a parallel loss of a capacity to respond to the love of its creator.
1.1 The undisclosed global value of Indigenous medical knowledge
Recent economic analyses indicate that the global market for genetic resources as of
1999 was “between US$500 Billion and US$800 Billion. By comparison annual
global sales of petrochemicals are some US$500 Billion.”2 Narrowing the genre of
genetic resources to pharmaceutical products indicates that a full 77% of all plant
2
Kerry ten Kate and Sarah A Laird, The Commercial Use of Biodiversity: Access to Genetic Resources
and Benefit-Sharing, U.K.: Earthscan Publications Ltd., 1999 at 1.
4
related pharmaceutical products3, or roughly 25% of the entire pharmaceutical market4
contains significant elements of direct contribution from the appropriation of
indigenous knowledge. Apart from modern pharmaceutical usage, traditional systems
of medicine and alternative and complementary medicine represent up to 50% of use
in many industrialised countries and up to 80% in many developing nations5.
Combining the indigenous contribution to pharmaceutical medicine with its traditional
use world wide indicate that indigenous knowledge may be responsible for over 60%
of medical treatment in developed nations and 85% in developing nations.
1.2 Bioprospecting in Australia: The unregulated gold rush
Against this global context it is important to note that Australia possesses greater
potential for productive bioprospecting than any other developed nation in the world.
This is due to its high levels of endemic biodiversity that place it 1st among developed
nations and 6th globally on the National Biodiversity Index,6 while this biodiversity is
90% endemic7 Combine this with its equally high level of Indigenous cultural
diversity, and the potential for the exploitation of Traditional Knowledge in
facilitating the bioprospecting industry becomes apparent.
1.3 The background of International and National Law Related to
Bioprospecting in Australia
The appropriation of medical products and knowledge of indigenous people in
Australia has a long history that predates British colonisation. One of the earliest
examples that we have goes back to at least the early 1600’s, with the trade in Trepang
(also known as Sea Cucumber). Makassan fishing boats from Indonesia brought
fishermen to the northern coastline of Australia searching for trepang.
This was traded and sometimes fought over with Indonesian merchants who would
then sell this delicacy to the Chinese market where, among other uses, it was dried and
used for its numerous medical properties, including reduction of athralgia, atrophy of
the kidneys, impotence, and many other medical uses. Most recently Japan has
patented a compound from the sea cucumber, chondroitin sulfate for HIV therapy.
While modern research is also focusing on its anti-inflammatory and anti-cancer
properties.
One of the first examples of post-colonial bioprospecting activity is recorded from the
1870's when
"Dr Bancroft, a Brisbane surgeon, used the knowledge of the Aboriginal peoples to
substitute extracts from the Dubosia plant as a substitute for atropine in opthalmic
3
R. Farnsworth, N R, Akerele, O, Bingel AS, Soejarto D D, Guo Z (1985), Medicinal Plants in
Therapy, Bulletin of the World Health Organisation, vol 63, 965-81
4
Duke, J A (1993), Medicinal Plants and the Pharmaceutical Industry, in J Janick and J E Simon (eds),
New Crops: Exploration, Research and Commercialization, Proceedings of the Second National
Symposium, Indianapolis, 6-9 October 1991, Wiley: New York
5
Bodeker G & Kronenberg F, 2002, A Public Health Agenda for Complementary, Alternative and
Traditional (indigenous) Medicine, American Journal of Public Health, 2,10, 1582-1591.
6
Global Biodiversity Outlook, p.249, UNEP, Montreal, 2001
7
See Beattie, A.J., Biodiveristy: Australia's Living Wealth, Reed Books, Sydney, 1995
5
cases. The plant was also found to contain hyoscine, used as a sedative, in the Second
World War, a local Dubosia industry was developed, as imports of these drugs were
unavailable. By the 1970's there were some 250 farmers growing Dubosia in northern
New South Wales and southeast Queensland, with an export industry worth more than
Aus$1 million annually. Other than in employment, the traditional users of these
plants have received no tangible benefits."8
More recently, in the 1980's the United States National Cancer Institute was granted a
license to collect plants for screening purposes by the Western Australian
Government9. A healing plant traditionally used by indigenous peoples, the
Smokebush (Genus Conosperum), was found to contain the bioactive compound of
Conocurovone, which is capable of destroying the HIV virus in low concentrations.
The license to develop the patent on this "discovery" was awarded by the US National
Cancer Institute to Amrad, a pharmaceutical company based in Victoria. Amrad paid
$1.5 million to the Western Australian Government in order to obtain access
Smokebush and related species. It has been estimated successfully commercial
exploitation of this plant may represent over $100 million per year in royalties to the
WA Government10. "Indigenous people are concerned that they have not received any
acknowledgement, financial or otherwise, for their role in having first discovered the
healing properties of Smokebush."11
There are many other examples of Australian Indigenous medical knowledge reflected
in scientific reserch that cannot be necessarily linked as specific examples of
bioprospecting. Sometimes there is a genuine parallel and separate research 'discovery'
that coincidentally was already known to Indigenous people. For example there are
patents pending on powerful anti-biotic compounds secreted by the metapleural gland
of the Australian Bull Ant. This was a recent discovery by Australian scientists.
However, Aboriginal Australians have known about the anti-biotic property of this
Bull Ant secretion for generations.12
Indigenous medical knowledge (IMK) requires protection within a number of legal
regimes for such protection to be effective. These include environmental law,
intellectual property law, human rights law and an increased capacity for selfdetermination through a more comprehensive recognition of native title and
accompanying land rights.
Nationally uniform legislation that positively and directly protects Indigenous medical
knowledge in Australia does not exist. There are a number of inhibiting factors to
overcome for this to change, while equally there are positive signs that such a capacity
is developing.
8
Blakeney, Michael, "Bioprospecting and the Protection of Traditional Medical Knowledge of
Indigenous Peoples: An Australian Perspective", [1997] 6 EIPR, p.298
9
Fourmile, Henrietta, Protecting Indigenous Intellectual Property Rights in Biodiversity, Kaltja vs
Business Conference, 28 August 1996, cited by Janke, Terri, in Our Culture: Our Future, Report on
Australian Inigenous Cultural and Intellectual Property, ATSIC, 1998, p.24
10
Blakeney, p. 298
11
Jenke, p.25
12
Beattie, A.J., Wild Solutions: How Biodiversity is Money in the Bank, Melbourne University Press,
2001, pp.125-131
6
Traditionally the Federal Government has had no constitutionally based specific
legislative power on environmental and cultural matters. While such legislative
capacity has been considered primarily to be the responsibility of each State. Thus
each State has developed its own position and approaches to such forms of protection.
Yet such traditional limitations of Federal legislative capacity are showing signs of
mitigation through various developments in the past decade.
First is the positive influence of a centralist High Court in adopting more expansive
interpretations of Commonwealth power and secondly, the creation of structures and
legislation that facilitate bilateral consultation between State and Federal
Governments on environmental issues. These include the Intergovernmental
Agreement on the Environment (May 1992), the introduction of the National
Environment Protection Act 1994, and most significantly the Environment Protection
and Biodiversity Conservation Act 1999.
These intergovernmental initiatives create a positive capacity for the creation of
uniform policy to the protection of environmental matters related to IMK. Yet the
protection of IMK does not currently fall within the ambit of considered 'National
Environment Protection Matters'. Therefore while there is a recent developing
capacity for a national policy of the protection of IMK is, it has not thus far been
adopted and is effectively ignored.
The only constitutional protection of the rights of indigenous people rest in s 109,
which provides that valid Commonwealth laws prevail over inconsistent State laws;
the "just terms" limitation in s 51(xxx); and , perhaps an implied right to equality if so
interpreted by the High Court.13
Similarly there is a gap of IMK protection in IPR laws in Australia. Intellectual
Property Law as it stands now within Australia has generally not developed out of
consultative frameworks of policy or principles that rely upon the positive resources
of international conventions. (Such as the CBD, ILO 169, Human Rights
Conventions, the UNESCO Convention of Cultural Property, Ramsar Convention on
Wetlands, CITES and the Convention to Combat Desertification.) The standard of
policy development has been an ad hoc basis that has resulted in a less than
satisfactory context, particularly in regards to the protection of Indigenous Knowledge
and the potential implementation of appropriate national standards.
While Australia is a signatory to both conventions [Berne & Paris],
our intellectual property laws do not accord protection to all the
subject-matter referred to in these definitions. Nor do they extend
protection on the basis of some wider general principle that may be
readily and immediately applied to new kinds of subject-matter as they
come into existence. Our approach has been piecemeal, giving
protection on an ad hoc basis as new claimants have been successful in
pressing their cases before the courts or legislature.14
13
p.464-465, Indigenous Legal Issues, 1997 ed.
Ricketson, Sam, Intellectual Property: Cases, Materials and Commentary,
Butterworths, Sydney, 1994, at 6.
14
7
There is a clear danger of developing IPR for the protection of indigenous knowledge
upon such an ad hoc basis, rather than upon a consultation process that results in
commonly agreed principals that should form the basis and guide the goals of such
IPR development. The danger is that such a context correspondingly results in an
uncoordinated application of protocols of access to indigenous knowledge that will
vary in their level of ethical standards. More specific limitations of IPR in protection
IMK will be discussed in section 2.4.1.
Lastly the most comprehensive remedy for the protection of IMK are the positive
development for Indigenous land rights. The first recognition of native title in
common law was established in 1832 in the United States case Johnson v McIntosh.15
The foundation of this recognition of native title was based on a 1537 Papal Bull:
[T]he said Indians and all other people who may later be discovered by
Christians, are by no means to be deprived of their liberty or the possession of
their property."16
The 1832 decision of Johnson formed the foundation of jurisprudence in New
Zealand17 and Canada18, while the Privy Council19 has long acknowledged its
authority.
Only since the 1992 High Court decision of Mabo20 has the Commonlaw principle of
Native Title been recognised. Yet the form that Native Title has taken thus far is very
limited in its scope in comparison with other common law countries. Since 1996,
further exacerbating such minimal recognition of indigenous land rights, is the
abandonment of Federal commitment to self-determination of indigenous peoples21.
This former official policy of self-determination has been replaced by a policy of 'selfmanagement' in consultation with government agencies. Equally the policy of
reconciliation that had gained such momentum until 1996 was abandoned and
replaced with a policy of 'practical reconciliation'. This effectively focuses on equality
and unity (which some have criticised as guises for assimilationism) but effectively
ignores or minimilizes historical contexts of unique discrimination. Thus the creation
of positive discrimination instruments for indigenous peoples through the creation of
any special rights is no longer an option in such a policy.
Due to this, the current political culture is not conducive to using current capacities
within Australian law to create any special recognition of IMK.
15
Johnson v McIntosh (8 Wheat 543; 5 L Ed 681)
Pope Paul III, Sublimis Deus, 1537, see F. Cohen, 'Original Indian Title' (1947) 32 Minnesota LR 28
at 45. Cited by Richard H. Bartlett, Native Title in Australia, p.6, Butterworths, Sydney, 2000
17
See: R v Symonds (1847) NZPCC 387; Te Runangao Muriwhenua Inc v A-G [1990] 2 NZLR 641
(CA)
18
See: Calder v A-G (British Columbia) (1973) 34 DLR (3d)145 at 151 per Judson J; at 169 per Hall J
(SC(Can)); Guerin v R (1985) 13 DLR (4th) 321 at 335 per Dickson J (SC(Can)).
19
See: Nireaha Tamaki v Baker (1901) NZPCC 371 at 384; St Catherine's Milling and Lumber Co v R
(1888) 14 App Cas 46 at48; Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 403
20
Mabo v Queensland (No 2) (1992) 175 CLR 1
21
See Mcrae, H., et al, Indigenous Legal Issues, p.641 ff., LBC, 2003
16
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It is this context in which Australia “won” the highly uncoveted “Captain Hook”
award from the NGO RAFI in 2000, for the country engaged in the greatest levels of
biopiracy in the world22. This was awarded "for over 118 dubious claims and possible
piracies and for refusing to address its intellectual 'meltdown'"23. An independent
investigation into these claims by the President of the Heritage Seed Curators
Australia, confirmed that 'In fact I quickly found that the situation was far worse.
Over the course of 5 months investigation we discovered over 100 illegitimate PBR
grants. In addition to Plant varieties from poorer overseas countries, there are many
Aboriginal plant varieties that have been appropriated via the PBR grant process."24
Generally, this context of ‘biopiracy’ is not symptomatic of an institutionally
organised attempt at such appropriation nor any particularly conscious malicious
intent. Rather it is primarily representative of a largely unregulated industry that has
resulted in a number of parties seeking genetic resources from indigenous
communities, whether directly or through accessing public knowledge, without
reference to a much needed set of nationally standardised ethical guidelines that
ensure appropriate IPR protocol.
While one is hopeful about the potential for the CBD and other positive international
forms of soft law to offset the conditions that led to the endemic condition of
biopiracy recognised in 2000, one can anticipate a time lag in the implementation of
the development of such national policies on the local practical level where such
appropriation continues to occur. This positive potential is also mitigated by the
commercial interests of the nation in developing the bioprospecting industry, as seen
in the recent parliamentary inquiry: Bioprospecting: Discoveries Changing the Future,
(Inquiry into development of high technology industries in regional Australia based on
bioprospecting), August 2001. This document offsets CBD concerns by emphasising
the need to attract investment by reducing any appearance of restrictive protocol or
benefit sharing ‘barriers’. Section 3.49 acknowledges that no provisions exist for
benefit sharing arising from use of resources.
Current government interest is primarily upon the facilitation of the biotechnology
sector in order to potentially achieve rapid economic growth. This is accompanied by
both a national campaign to develop biotechnology infrastructure, as well as
aggressive international marketing campaigns designed to attract multi-national
interest in investment. Protection of the environment is seen as necessary to the degree
that it facilitates this commercial activity25. Ensuring correct protocol with indigenous
communities is seen as necessary to the degree that it facilitates the flow of
commercially valuable knowledge from indigenous communities to the
bioprospecting sector.
Rafi, “Bioprospecting/Biopiracy And Indigenous Peoples”, p.2, 30/11/94, at
http://www.rafi.org/article.asp?newid=212, last viewed 03/12/02
23
Ibid.
24
Hankin, Bill, "Australian Plant Piracy", at http://members.ozemail.com.au/~hsca/PBR_03a.html, last
viewed on 03/11/02
25
For example a former New South Wales Minister for Planning and Environment referring to the
NSW EPA act indicates the priority of job creation over environmental protection, "One would be
blinkered if it were not appreciated that because of the current ecomonic climate, the Government has
chosen to place a good deal of emphasis on job-creation." Cited by Boer,B., "Social Ecology and
Environmental Law", (1984) 1 Environmental and Planning Law Journal 233
22
9
John Henry Vogel examines the Queensland Biodiscovery Policy Discussion Paper
(Queensland Government 2002), [where] the word “biopropsecting” has been
replaced with the seemingly less odious term “biodiscovery.”26 Among various
criticisms of this discussion paper Vogel examines is the effective benefit sharing
equation 0.003 or 0.3% on offer. While this is considered unreasonably inequitable in
light of the CBD, it also only applies to landowners upon whose land a 'biodiscovery'
is made, which removes indigenous people from such considerations of benefit
sharing even further.
Currently there are over 180 biotechnology companies in Australia. Nearly all of them
are small to medium sized companies. Those companies specialised in bioprospecting
are focused on the screening of flora and fauna for bioactive compounds. However
they do not continue to the final commercial stages of product development,
marketing and sales to the public. Once the isolation of the bioactive compounds has
been completed, the rights are sold to multi-national pharmaceutical companies,
usually based in the U.S.. Thus, although there is a national intention to facilitate the
biotechnology sector for its development as a significant economic resource base of
the country, in reality the current state of affairs is enhancing the flow of genetic
resources from the “South to the North”, making fulfilment of the nations concern for
truly long-term sustainable development practices on a national level very
problematic. Due to the current awareness of economic loss associated with benefit
sharing and the potential undesired complexities associated with indigenous protocol
issues, bioprospecting companies in general prefer to develop and rely upon existing
ex situ databases that do not impose such requirements. As indigenous knowledge that
has already been appropriated by such pre CBD ex situ collections is not protected,
this also makes it expedient as a valuable resource.
80% of all companies that use ethnobotanical knowledge...rely solely on
literature and databases as their primary source for this information. This
fact has significant implications for benefit-sharing, and suggests that
academic publication and transmission of knowledge into databases - rather
than filed collections on behalf of companies - are the most common route
by which traditional knowledge travels from a community to the commercial
laboratory. Companies therefore have access to knowledge in ways that do
not trigger benefit-sharing.27
It is also suggested that a significant amount of undisclosed direct in situ
appropriation of indigenous knowledge is occurring in Australia. This assumption is
justified for a number of reasons. The first reason has already been mentioned, that of
the year 2000 RAFI “Captain Hook” award for the greatest level of biopiracy of any
country. This assumption is also due to the awareness of the cost savings associated
with bypassing much of the pre-screening processes associated with more random
methods. Currently there is little recourse for indigenous communities and without
well-designed pre-screening contracts, no penalties for unethical appropriation are
26
Vogel, John Henry, "Sovereignty as a Trojan Horse: How the Convention on Biological Diversity
morphs Biopiracy into Biofraud", p.14, paper on file with Authors. (Submitted by Vogel October 2002,
to Indigenous Self-Determination: An Unresolved Constitutional Issue, Aboriginal Studies Press,
Canberra, Australia)
27
Kate & Laird, at 62
10
imposed upon corporate appropriation. The assumption of continued ‘black market’
bioprospecting is further reinforced by the examination of the statements of randomly
selected bioprospecting company policies, quarterly shareholder reports and annual
reports which usually fail to mention any indigenous participation whatsoever. Given
that previous analyses has shown that 77% of the bioprospecting of plant-related
pharmaceuticals finds its origin in indigenous communities, it is contrary to common
sense to assume that such a pattern has altogether ceased.
There is a growing consensus among indigenous communities that IPR as it currently
exists in Australia does not sufficiently provide effective protection for indigenous
knowledge. As such one can anticipate that in situ bioprospecting activities involving
indigenous communities will slow in coming years until indigenous confidence in the
effective capacity of IPR is restored.28
The next section of the paper addresses some of the background concerns of
indigenous people, the nature of indigenous knowledge, and suggests ways forward in
the long term process of determining how it can be protected in order for relationships
of trust to be justifiably developed.
2. Indigenous concerns related to the protection of Indigenous Knowledge
It should be first stated that this by no means represents a comprehensive overview of
indigenous concerns. Rather it is an attempt to take a step back, allow a wider vision
of context, and then discuss select concerns that are considered under-represented in
the IPR debate. This is offered as resource for addressing more fundamental long-term
issues of IPR, but are considered no less important than many of the necessary and
immediate attempts of remedy involving more specific technical discussions.
2.1 Avoiding objectification
First it is important to recognise something that seems like common sense but that
occurs remarkably frequently in our history. It is that we should avoid objectifying the
thousands of unique indigenous communities or their knowledge systems as
monolithic singularities whose nature can be simply categorised into neat definitions.
Due to the great diversity of contexts that indigenous peoples experience, the qualities
that compromise their community identity will vary widely. As well, their knowledge
systems are equally diverse and are highly complex metaphysical networks of
concepts that manifest themselves in a great variety of methodological applications
suitable to the particular ecological contexts in which they dwell. In order to avoid
28
Such indigenous sentiments are widespread and represented in numerous international indigenous
declarations. An example is found in the Mataatua Declaration on the Cultural and Intellectual
Property Rights of Indigenous Peoples (1993):
2.6 Indigenous flora and fauna is inextricably bound to the territories of indigenous communities and
any property right claims must recognise their traditional guardianship.
2.7 Commercialisation of any traditional plants and medicines of indigenous peoples must be managed
by the indigenous peoples who have inherited such knowledge.
2.8 A moratorium on any further commercialisation of indigenous medicinal plants and human genetic
materials must be declared until indigenous communities have developed appropriate protection
mechanisms.
11
such errors of simplification, misrepresentation and distortion of diverse identities and
knowledge systems, it is suggested that development of appropriate IPR laws is
entirely dependent upon wide ranging consultation with such communities. This also
implies the need for recognising the importance of indigenous self-determination in
that it is they who are the experts in advising what is indigenous knowledge. All to
often our laws have sought to inappropriately define what is indigenous identity and
devalue and objectify their knowledge as superstitious and subjective tokens of a
Neolithic age that merely represent “in situ” museums of a past age of human
evolution.
2.2 History of Bioprospecting and the Genocide of Indigenous Culture
“That [people] do not learn very much from the lessons of history is the most
important of all lessons that history has to teach.”
-Aldus Huxley
In our attempts to formulate appropriate intellectual property laws for the protection of
indigenous knowledge it is easy to be distracted by the apparent technological novelty
of modern biotechnology industries and “sudden” awareness of the enormous
economic value of bioprospecting in our modern context. Often one gets the
impression in current literature that bioprospecting is made possible by recent
increased capacities in the biotechnology industry and often the focus is upon the
nearly exponential growth rates in patenting activities29 and economic growth.
The reminder that history repeats itself (and that we often forget such repetition and
thus fail to learn from it) is valuable for our discussion in our focus upon the “new”
industry of bioprospecting and the appropriation of indigenous knowledge. The
collective memories of indigenous peoples are often long and tell a different story.
Bioprospecting is one of the oldest industries in the history of civilisation. Every
civilisation has been dependent upon the extent to which they developed knowledge
of their biological resources and to what degree they sustainably used that knowledge
in supporting their needs of agriculture, medicines, and other industries. Equally so,
unsustainable bioprospecting practices and the manner in which those resources were
unsustainably exploited played no small part in the demise of a number of great
civilisations and is a watershed moment upon which our own civilisation now faces.
The appropriation of such resources from indigenous peoples by the dominant cultures
has also been an ancient part of this industry. It has been said that Christopher
Colombus was, among other things, an archetypal bioprospector in search of the East
Asian “Island of Spices” who instead found a Caribbean island and began a familiar
process of transferring the countless genetic resources from indigenous peoples to the
Walter Reid, “The Economic Realities of Biodiversity”, Issues in Science & Technology, Winter,
1993-4.
29
12
developed nation states of Europe30. Accompanying this “transfer” of intellectual
property is something far more sinister than mere issues of ownership and theft.
Within decades after the ‘discovery’ of America, whole nations which
had thrived there for centuries had been reduced to nothing. Millions of
men, women and children were massacred. Those who survived
suffered untold misery and deprivation. The conquerors, while
eliminating the indigenous people, also introduced African slavery on
the continent. History can be re-written. It cannot be undone...five
centuries after Colombus, [indigenous peoples] cause [is] still not being
taking seriously.31
This is not an appeal to historical injustice to garner moral appeal for more
comprehensive intellectual property rights as a manner of restitution for past
injustices. The value of acknowledging this in current IPR discussions is for a number
of reasons. First it is to remind us of the accompanying contexts of indigenous
genocide that inevitably become associated with such “transfer” processes. While
such appropriation may not in itself cause the cultural genocide, it is symptomatic of
the overall objectification and devaluation of the subordinate indigenous cultures by
the dominant cultures which is the primary cause of such cultural genocide. Such
historical patterns of genocide are not footnotes in an elementary school-book but are
very real present-day realities. UNESCO reports that 4,000 to 5,000 of the 6,000
languages in the world are spoken by indigenous peoples32. 2500 of those indigenous
languages are under immediate threat of extinction in the present generation, and it is
also estimated that 90% those indigenous languages that make up the majority of the
worlds cultural diversity will become extinct in the next 100 years.33
Acknowledgment of the interdependence of the link between cultural appropriation
and cultural genocide is important to IPR because ultimately it reminds us of the true
gravity and importance of our discussion in that the implications of a wise focus
include not just the protection of unique knowledge, but the very protection of human
lives and communities. This naturally leads to the second value for IPR discussions in
the recognition of integrated indigenous needs. Such recognition supports the
movement towards integrated legal regimes of IPR, Human Rights, and
Environmental Law, that don’t just protect the knowledge of indigenous peoples, but
protect the indigenous communities themselves and allow the capacity for selfdetermination that ultimately facilitates the preservation of such knowledge34.
30
Auer, M. 1998. Access to genetic resources and benefit sharing, pp. 199-207. In Biodiversity: a
challenge for development research and policy, W. Barthlott & M. Winiger (eds.). Berlin: SpringerVerlag.
31
Indigenous Peoples: a Global Quest for Justice: A Report for the Independent Commission on
International Humanitarian Issues, ICIHI, London, ZED Books Ltd., 1987, xvi-xvii
32
UNESCO Amendment to the Draft Programme and Budget for 1994-1995 (27 C/5), Item 5 of the
Provisional Agenda (27 C/DR.321). UNESCO, Paris, 1993
33
Skutnabb-Kangas, Tove, Linguistic Genocide in Education-Or Worldwide Diverstiy and Human
Rights?, p.82, Lawrence Erlbaum Associates, Mahwah, 2000
34
For a recent valuable discussion on achieving a consensus on the various interpretations of selfdeterminations see Robert T. Coulter in Indigenous Peoples and the Law of Self-Determination: A
Possible Consensus, Washington, Indian Law Resource Centre, October 18, 2002
13
2.3 The centrality of considering self-determination in the formulation of
appropriate IPR to protect indigenous knowledge.
If one is truly concerned with protecting Indigenous Knowledge, a successful
resolution of intellectual property rights for Indigenous Peoples requires a shift of
vision in the standard patterns of legal principals used in interpreting the relationships
between Indigenous Knowledge and Bioprospecting. For the vast majority of
Indigenous Peoples involved in this emerging discussion of TK and IPR such a vision
begins and ends with the rights of self-determination manifested in specific political
contexts of struggle. An essential reason for recognising the basic right of self
determination has already been discussed in section 2.1. Focusing on selfdetermination helps avoid the objectification process that often impairs the
characteristics of legal regimes designed to ‘help’ them. The history in all countries in
this regard is similar and no less so in Australia. At each historical step in the
‘evolution’ of legal regimes designed to help indigenous peoples, they have inevitably
appeared barbarous and antithetical to ‘modern’ people. Even the legislation that
forcibly removed indigenous children from their families for assimilation purposes
was designed by those who thought they had the best interests of those children in
mind. We should not sit back and confidently judge such epochs as representative of
contexts we have moved beyond. We may have apparently moved beyond them due to
certain types of maturation in community consciousness. However the methodology of
objectification that is still employed will ensure that future generations will judge
current legal regimes designed to help indigenous people, no matter how laudable the
present generation believes them to be, as equally inappropriate in nature as previous
‘barbaric’ regimes. Focusing on self-determination and genuine consultation processes
discourages the repetition of such a history.
There are a growing number of western legal scholars who do acknowledge the
centrality of self-determination in such a discussion. However the inclusion, much
less the centrality of such a concept in standard IPR papers focusing on TK is less than
common. It is safe to say that if it is acknowledged it is because of ethical
considerations that compel a considered response to indigenous concerns, rather than
representing a natural emanation of apriori inner orientation among western legal
scholars. The key to transforming the currently relegated status of self-determination
in IP is to convey its importance in standard legal education programs which
facilitates a more natural and sincere consideration by future legal scholars.
One of the hallmarks of ignoring self-determination (SD) is that the typical focus in
protecting TK is really upon protecting the valuable commercial products that result
from such knowledge, rather than upon the unique value of the process of TK itself
and the indigenous communities that represent the foundation of such knowledge. The
first focus is upon economic commodities, the second is upon the relationships that
result in such economic value. On an environmental parallel, it is as if the discussion
is upon protecting the rights of individuals to the resources of the earth as opposed to
protecting the ecological relationships that produce such resources in the first place. A
serious commitment to Ecologically Sustainable Development requires a shift of
vision to the latter, which in the context of TK and IPR requires acknowledging the
centrality of self-determination.
14
2.4 Limitations of IPR in the protection of ethnobiological knowledge and the
importance of a flexible regime
2.4.1 Current limitations
Much discussion has taken place in regards to the capacity of IPR to protect
Indigenous Knowledge, and more specifically in this case, ethnobiological knowledge.
A number of specific weaknesses have already been determined in the IPR community
and a growing consensus about the nature of those weaknesses as well as a growing
range of suggested solutions is developing.
These weaknesses include:
-Inability to address overt and covert processes of forced assimilation, the breakdown
of traditional social frameworks and the associated loss of traditional Indigenous
knowledge.
-issues of private versus communal ownership
Two cases highlight the failure of indigenous communal interests to be recognised in
intellectual property law in Australia. Yumbul v. Reserve Bank of Australia 35and
Milpurrurru v. Indofurn Pty Ltd36. Two important statements to arise from the courts
decisions. The court in Milpurrurru found that "the statutory remedies do not
recognise the infringement of ownership rights of the kind which reside under
Aboriginal law in the traditional owners of the dreaming stories."37 While the court in
Yumbul made the important recognition and recommendation that: "Australia's
copyright law does not provide adequate recognition of Aboriginal community claims
to regulate the reproduction and use of works which are essentially communal in
origin...the question of statutory recognition of Aboriginal communal interests in the
reproduction of sacred objects is a matter for consideration by law reformers an
legislators."38
-burdensome patent requirements for novelty, innovation, industrial applicability, and
a limited duration of protection;
-limit of protection to material form rather than oral tradition;
-the difficulty in adapting to disparate national IPR regimes that transnational
indigenous communities face. (Whose natural ethnoecological demographics are
bisected by the artificial boundaries of differing nation states);
-facilitation of the public exploitation of knowledge versus a sacred relationship
between the knower and the knowledge that demands a prerequisite wisdom and
respect for an appropriate protocol of relationships; Custodianship rather than
ownership.
35
(1991) 21 Intellectual Property Reports 481.
(1995) 91-116 CCH Australian Intellectual Property Cases 39,051.
37
Ibid, at 39,077.
38
(1991) 2 Intellectual Property Reports 481 at 490 and 492.
36
15
-the great expense involved in obtaining protection39;
-the separation of protection for tangible and intangible property versus an indigenous
vision of their unity;
-lack of understanding and protection of indigenous spiritual knowledge.
This last point is considered fundamental to understanding the network of
relationships involved in most of the preceding points. Section 3 will consider some
of the dangers this lack of understanding creates, how it is manifested in current legal
contexts, and its origins in the history of western legal culture.
2.4.2 Requirement to acknowledge three levels of value in the protection of
indigenous knowledge
Reference is made again to the considerations referred to in section 1.2 related to
avoiding the simplification, caricature or objectification of the nature of indigenous
knowledge. The imperative for recognising diversity and sophistication in indigenous
knowledge systems imposes the already mentioned responsibilities of establishing the
primacy of consultative frameworks with indigenous peoples and the essential
recognition of self-determination. Additionally such consideration imposes the
responsibility to adopt flexible measures of protection capable of responding to the
varying values such diverse and sophisticated knowledge systems represent.
It is suggested that there are three levels of value that need to be addressed if a longterm solution to IPR that adequately addresses the needs and concerns of indigenous
people is to occur. The first level of value is the instrumental economic value of
indigenous “products” that are appropriated in the bioprospecting process. That is the
level at which most IPR discussions take place. The next level is the value of the
unique indigenous knowledge methodologies, metaphysical frameworks and
epistemic foundations that are responsible for the ‘production’ of these commercially
valuable products in the first place. The third level of value is the intrinsic value of the
indigenous people themselves and the web of spiritual, social and ecological
relationships which their identity is intimately associated with.
Due to these differing levels of required protection, a variety of short, medium and
long-term strategies for transforming IPR are necessary to adequately protect TK.
1. Short term to medium term- e.g. adoption of Prior Informed Consent frameworks
such as WIPO’s formulation of “The Requirement”40, access-restricted indigenous
39
Michael Blakeney indicates that 'the cost of patenting an invention is approximately Aus.$14,000 in
Australia," while "to obtain registration of a patent in the principal trading countries of the world" is
estimated at "Aus.$459,657". Blakeney, "Biosprospecting..", p.300
40
See Nuno Pires de Carvalho, Requiring Disclosure of the Origin of Genetic Resources and Prior
Informed Consent in Patent Applications Without Infringing the TRIPS Agreement: The Problem and
the Solution, 2 Wash. Univ. J.L. & Polý 317 (2000).
16
owned databases41, ‘multi-first-nation’ indigenous owned pharmaceutical
companies42.
2. Medium term- e.g. sui generis integration43 of human rights44, linguistic human
rights45, international environmental law46, intellectual property47.
3. Long term - ongoing consultation process on reviving capacity of law to value
variety of spiritual consideration of indigenous peoples based on the development of
tools of historical and metaphysical empowerment. This ultimately translates into a
capacity of law to facilitate indigenous self-determination. The draft UN Declaration
of the Rights of Indigenous Peoples is a good example of consultation processes
focusing on long-term issues of transformation.
It is suggested that this last issue of understanding and protecting spiritual knowledge
is the key integrative principle for understanding many of the problematic IPR issues
mentioned in section 2.4.1. It is also unfortunately, the least discussed and understood
issue in the IPR debate.
[Spiritual knowledge] is probably the least protected and explored by the
Western legal regimes, although its significance and interrelatedness with
the other two categories [physical and artistic] is striking.48
...the development towards a satisfying protection of indigenous interests in
ethnobiological knowledge heavily builds upon the outcome of the
evaluation of the nature and intrinsic value of ethnobiological knowledge.49
...extensive research on ethnobiological knowledge will have an important
task in the preparatory phase for the adoption of sui generis legislative
protection.50
The next section explores the issues associated with developing the fundamental
resource for IPR of understanding indigenous spiritual knowledge in western legal
traditions.
See Dutfield, Graham, ‘Protecting and Revitalising Traditional Ecological Knowledge: Intellectual
Property Rights and Community Knowledge Databases in India’, Intellectual Property Aspects of
Ethnobiology, Blakeney,Michael,(ed.), Sweet & Maxwell, 1999, 103-122
42
Jones, Chris, et.al., forthcoming feasability study on ‘multi-first-nation’ Indigenous Pharmaceutical
Company, findings to be reported at 9th International Ethnobiology Congress, Kent, England, June
2004.
43
See Posey, Darrell & Dutfield, Graham, Beyond Intellectual Property: Toward Traditional Resource
Rights for Indigenous Peoples and Local Communities IDRC, Ottawa, 1996
44
“1. Human rights, an ecological sound environment, sustainable development and peace are
interdependent and indivisible”, in draft Declaration of Principles on Human Rights and the
Environment, Meeting of Experts on Human Rights and Environment - Geneva, 16-18 May, 1994.
45
See draft UN Declaration on the Rights of Indigenous Peoples,
46
For a number of recent papers related to linguistic human rights and indigenous ecological knowledge
see, On Biocultural Diversity: Linking Language, Knowledge, and the Environment, (ed) Maffi, Luisa,
Smithsonian Institution Press, Washington, 2001
47
For additional review of integrated approaches to human, environmental and indigenous rights, see
Craig, Donna, ‘Globalisation and the Rights of Indigenous Peoples’, 2002
48
Martine de Koning, ‘Biodiversity Prospecting and the Equitable Renumeration of Ethnobiological
Knowledge; Reconciling Industry and Indigenous Interests’, in Blakeney (1999), 36.
49
Ibid, 40-41
50
Ibid, 41
41
17
3 Understanding Indigenous Spiritual Knowledge
Traditional knowledge is diversely represented, but from an Australian Aboriginal
perspective there are some common themes:
1. Founded in a spiritual and religious relationships from the Aboriginal world
(between humans/spirits/ and all other living things) as understood through the
direction of Aboriginal teachings and experiences;
2. The establishment of roles, responsibilities and obligations derived from this
spiritual and religious relationship to spirits/spirit world, humans and other living
things;
3. The establishment and affirmation of community links connections and sense of
belonging, (cohesion / health of community land and people);
4. The organisation of roles, relationships and obligations into gender and other
specific areas of responsibility ie. (mens and womans business, totems, elders etc)
5. The associated protocols that are derived from all of the above, in relationship to
the maintenance and passage of knowledge throughout the community and the
forthcoming generations (Respect).
6. The notion that knowledge has an animate nature due to the characteristic way it is
carried and passed on from the spirit world into the physical realm and back again.
(What comes from the earth can return to the earth, what is given can be taken back,
what is lost can be found)
This last point emphasizes the nature of traditional knowledge being something that is
carried not owned, being a gift given for the benefit of the whole community to be
used in a very specific way dictated by the definition of respect forged by the
framework established by Aboriginal religious knowledge and spirituality passed on
via the spirit world.
If it is not respected (Traditional Knowledge) it will be returned to the spirit world
until it can be received by those who will carry it in the appropriate way.
Therefore the knowledge will be lost if it is not respected, it is respected by
understanding (learning/observing) the appropriate cultural protocols
(actions/impacts). These protocols are not strictly confined to the observance of
respect within the human community but to the Aboriginal world as seen through
Aboriginal eyes. (The spirit world/ living animate world/humans and all other living
things). As they are inextricably connected via creation.
To harm any of these elements is to show disrespect and establish the process of
cultural loss and destruction.
18
3.1 Acknowledging impaired vision in western culture through analogy
The authors have been unable to discover research that directly addresses the
historical processes that have resulted in the incapacity of western law in general, and
IPR specifically to adequately relate to the spiritual concerns of indigenous people. It
is suggested that such research is urgently required as fundamental to understanding
basic issues of appropriate understanding and protection of such knowledge. The
following therefore represents a preliminary attempt to offer one such way of
examining this issue. It is acknowledged that such observations can only be
representative of ‘dipping our toe in the water’51. But it is hoped that it may encourage
others of the benefit at more comprehensive immersions.
I am an invisible man...I am invisible, understand, simply because people
refuse to see me...It is as though I have been surrounded by mirrors of
hard, distorting glass. When they approach me they see only my
surroundings, themselves, or figments of their imagination--indeed
everything and anything except me....That invisibility to which I refer
occurs because of a peculiar disposition of the eyes of those with whom I
come in contact. A matter of the construction of their inner eyes.52
It is suggested that there are a number of contexts that greatly impair the capacity of
IPR to understand and protect indigenous spiritual knowledge. Understanding such
contexts is essential in the long-term development of a comprehensive discourse about
the nature of indigenous spiritual knowledge and how it is best protected.
The following introduction to the subject intentionally simplifies and generalises the
nature of western culture in order to make clear a particular observation about a
common perceptive incapacity. While in reality western culture is acknowledged to
have a great variety of contexts, it is suggested that most contexts will relate
significantly to such an objectification in varying degrees. The simple analogy that is
used is hoped to provide some useful images that allude to particular aspects of the
discussion. Following the analogy, a more academic analysis of the discussion will
occur.
Effective vision sometimes requires new glasses, the removal of cataracts from the
eye, or even a retraining of the mental capacity to process vision. Sometimes
blindness creeps up on us in such slow degrees, that such impairment is not
recognised until we are specifically tested or diagnosed. On a cultural level of vision,
if the incremental nature of such impairment is extended over generations, than the
chance of recognising the process of impairment is further reduced.
In some ways, in attempting to define and protect indigenous spiritual knowledge we
are the person squinting at the multi-dimensional object trying to make a judgment
call that is made impossible by such impairment that we do not even know we have.
51
Particularly as invitation was extended to write and present this paper with only several weeks time
for preparation...
52
Ellison, R. Invisible Man, Random House, New York, 1952, 7. Quoted by Dodson, Michael, ‘The
Wentworth Lecture. The end in the beginning: re(de)finding Aboriginality’ (1994) 1 Australian
Aboriginal Studies 2-13
19
From one indigenous perspective our western culture suffers from two types of
impaired vision in relation to spiritual knowledge: that of a loss of clarity as well as
depth. In addition, we have, through much practice, caused our inner visual processing
capacity to see the world as comprised primarily of objects rather than relationships. It
is confidently suggested that a comparative linguistic analysis between English and
Indigenous languages would confirm this differing primacy of object vs. relationship
foci that is a manifestation of inner cultural visual orientation
Such impairment in western culture has occurred first by the wilful devaluation and
closing of one eye and the subsequent general deterioration of vision that has occurred
through neglect. To clarify: many indigenous peoples consider that spiritual and
material reality form a unity. To deny one to the other is to completely lose a
dimension in our vision. The balanced, coordinated use of both eyes is required to
enable the shift from two dimensional perception to three dimensional vision. Such
two dimensional vision impairs our capacity to recognise the depth of relationship and
perspective between objects which is fundamental to the relational quality of
indigenous spiritual knowledge.
Western culture has experienced such an unnoticed gradual impairment of
‘metaphysical vision’, most significantly in the period since the Enlightenment, that
particularly relates to the incapacity of IPR to adequately relate to indigenous spiritual
knowledge.
The discipline of law is generally not well designed to conduct such an examination.
However, it is only by adequately diagnosing the mechanisms of such impairment in
the history of the formulation of our legal system that we are enabled to formulate
potentially appropriate remedies. In order to engage such a diagnosis of mechanisms
other disciplines must be called upon in order to provide law with the resources
necessary to construct such adequate remedies. Among the necessary disciplines are
included legal anthropology, ethnobiology, historical criticism, sociology,
comparative religion, and scientific philosophy among others. This section hopes to
demonstrate the need and value of such collaboration in the long-term process, so
those members of the discipline of law are encouraged to invite these other disciplines
into a specific collaborative projects of consultation and diagnosis. Indigenous people
must be included in this consultation process. Moving beyond mere inclusion, we
should place great importance on indigenous communities determining the agenda,
characteristics of process and the desired outcomes of such consultation. This is
ultimately important in acknowledging the right of indigenous self-identification in
ensuring the authenticity of the representation of knowledge. This is part of the wider
obligation in facilitating indigenous self-determination.
3.1 A current context: The incapacity to understand indigenous spiritual
knowledge due to western law being characterised by a ‘deep-seated secularism’
and positivism.
It is at this point appropriate to quote extensively from Marrion Maddox:
20
there are at least four ways in which a deeply secularised culture, with little
to sensitise it to the needs of religious minorities, is likely to react to
Indigenous communities' religiously-based claims. It may:
* ignore the religious elements of a tradition, subsuming them under a
category such as 'culture' or 'custom'
* cherish unfamiliar religious forms for their perceived strangeness
* decry unfamiliar religious forms for their perceived irrationality
* interpret unfamiliar religious forms through the framework of possibly
inappropriate familiar forms.
Regardless of the response, a further feature of a highly secularised society
is likely to be unease and imprecision in the use of terms which refer to the
religious elements of a tradition. The tendency in both legislation and
commentary referring to Indigenous heritage has been to use the terms 'the
spiritual' (or, occasionally, 'spirituality'), 'the sacred', 'custom', 'culture' and
'tradition' somewhat interchangeably. Such imprecision goes hand in hand
with a reluctance to define 'spiritual' or 'sacred'. Yet the meanings which are
implicitly ascribed to these concepts may have substantial consequences for
the ways in which claims are resolved. In particular, the common usage of
'spiritual' inappropriately implies, for Anglo-Australian readers, a realm
opposed to, and superior to, the 'material'53.
Furthermore, Marion indicates the dangers of not appropriately understanding
indigenous spiritual knowledge:
* ignoring the specifically religious elements of a tradition may mean the
tradition is seriously misrepresented
* emphasising the apparent strangeness of an unfamiliar tradition may foster
an attitude of voyeurism on the part of the dominant culture
* criticising the apparent irrationality of an unfamiliar tradition judges
religious content on criteria alien to the nature of religion
* interpreting the unfamiliar by means of the familiar may disadvantage
members of a religious community because of their tradition's failure to
match an assumed frame of reference.54
It is suggested that IPR is also affected by the context of this ‘deep seated secularism’
that tends towards processes of interpretation that objectify, devalue, distort and
ignore particular elements of indigenous spiritual knowledge that are unfamiliar both
Maddox, Marion, ‘Indigenous Religion in Secular Australia’, Research Paper 11 1999-2000,
Department of the Parliamentary Library, 1-2.
54
Ibid
53
21
in form and orientation. In order to repair such vision the following discussion of the
origins of such a process is offered.
3.2 A historical perspective on the process of spiritual visual impairment
The time available for preparation of this paper (only several weeks) only allows for a
very basic summary of some of the historical and philosophical issues associated with
this process.
From my own point of view, a central feature of culture is that it is the social
manifestation of unique sets of spiritual virtues formed in the long-term relationship
between a specific community and the ecological context in which they exist. In other
words, our relationship with the land in which we dwell forms our culture.
Many Indigenous communities see the biodiversity of their ecological contexts as
representing forms of spiritual diversity. Each creature reflects an attribute of the
ultimate sacred reality, sometimes referred to as the Creator. These infinite sets of
attributes, such as patience, nobility or courage are manifested by each individual
plant and animal in an entirely unique way. The spiritual realities of these creatures
exist in a completely interdependent web of relationships that form our environments.
From such a web of spiritual interdependence our own being is formed, and evolves.
In that sense, we are the land. This is why you hear many Indigenous voices say that
we do not own the land, the land owns us.
This is a relational understanding of culture that has been largely lost in the west. In
western theories, often culture is seen as the subjective experience of collections of
individuals, and therefore the value of such culture is objectified as the domain of
personal opinion. The value of culture is therefore degraded to having no real value in
itself other than it’s aesthetic value, as if it were a piece of artwork that can be bought,
sold, or destroyed if its value is not recognised.
The imbalanced and fractured perspective of culture and civilisation, spirit and matter
in western consciousness can be traced historically back to the enlightenment period
in which European philosophers, politicians and scientists developed what has often
been called a dualistic metaphysics or world-view. This period has often been
caricatured as a war between science and religion, with science the ultimate victor.
However this fracturing of metaphysics is due to a somewhat more complex history.
Such a fractured worldview was the product of over-reactions to the tyranny of
knowledge enforced by both political and religious leaders at the time. Such tyrannical
assertions of absolute truth resulted in such great injustices as the thirty-year war and
the grand inquisition. The philosophies and political reactions to this injustice that
were largely perpetuated by religious institutions, resulted in the removal of the
“tyrant God” from the centre of modern thought. This process of the removal of the
Divine was gradual but effective.
Ironically most of the central figures considered responsible for this process all
believed in God, and some of them quite strongly, yet the fashion in which they were
22
interpreted by radical secularists is largely to be blamed for the fracturing effect. Here
is a representative summary of some of the forces at work in our history:
Newton’s success in explaining the operations of the universe through mechanistic
principles was often equated with seeing the physical order as a machine. Newton
actually encouraged this metaphor in that it alluded to Divine intelligence behind the
design. Later science would adopt the concept of universal principles and law explaining
all physical relationships, but lose the idea of design and God. This was enabled as the
“machine” gained the principle of independent internal momentum, through Descartes
and others; and finally when the machine acquired a random, purposeless evolutionary
force of its own, through Darwin. The machine, had once been a marvel of genius in its
sophistication, elegance and universal intelligibility that alluded to an infinitely virtuous
Creator. However through a distorted interpretation of both the processes themselves,
and the intentions of their authors, it became a self-winding, self-operating, and selfdesigning machine, as it were. The result is our currently predominantly materialistic
and positivistic world-view. Associated with these developments that the assertion
grew that truth is completely relative to the individual. Such an idea was developed so
that tyrannical forms of injustice could not assert their hold on the minds of entire
populations. While such a goal is a noble one, the over-reactive nature of the
philosophies that developed out of such a context created a kind of spiritual neurosis
in the west in which it is impossible to assert that their are universal truths that are
relational to us all. Such a process resulted in the splitting of reality that has formed
unnecessary dualities that usually incorporate a hierarchical objectification of matter
and spirit, male and female, objective and subjective, nature and humanity, culture
and civilisation, among many other categories.
Such a summary does not properly represent the complexity of the historical and
philosophical elements that contributed to such a process. I do think it provides an
adequately brief example of one of many valuable approaches we can take to
examining the causes our lack of capacity to recognise a unity of spiritual and material
reality that is at the heart of many indigenous peoples concerns.
Only by such a fracturing of metaphysics has the objectification of culture and nature
become possible in western thought. It is only possible to assert such theories as the
patenting of life-forms or individual ownership of the land when one divorces human
existence from nature, so that one may possess it as if it were a dividable commodity
and not an interdependent web of relationships. This is why many Indigenous people
feel so uncomfortable being forced to answer the question imposed by the west “Who
owns this land?” It is not an appropriate question to address their understanding of
their unique relationship to the land and can only be asked by someone who has been
afflicted by the spiritual neurosis inherited from the European enlightenment. It is like
asking someone: Who owns who? The wife or the husband? It just doesn’t make
sense in a marriage of interdependence and equality.
To further focus our lens we will now focus in upon bioprospecting. Perhaps no other
cultural and scientific issue more significantly reveals the spiritual issues involved in
this discussion. It involves in its most direct sense the valuing of life itself in both
nature and humanity, and the manner in which that value is determined.
23
The economic value of bioprospecting has already been demonstrated.
The value that the west has given to bioprospecting places a real value on cultural
knowledge beyond mere subjective values of aesthetics. It implies both a scientific
and an economic value, in that Indigenous knowledge is recognised as one of the best
sources for the development of a great range of products in industry, technology and
medicine.
From some spiritual perspective’s such as a number of religions, and a number of
indigenous forms of traditional ecological knowledge (TEK), bioprospecting is really
the search for virtues of the divine manifested in the natural world. It is important here
to contrast indigenous and western methodologies of bioprospecting. Indigenous
bioprospecting is ancient and acknowledges both the sacred intrinsic value of nature
and its interdependent web of spiritual relationships. Its scientific methodology is the
long term result of humility in the recognition of human dependency on nature and
how that interdependency is manifested in a diverse relationality. Whereas modern
bioprospecting in the west is primarily governed by a metaphysics incorporating an
instrumental rather than intrinsic valuing principles that include individualistic ethics
that confer value only in relation to the immediate perceived value to our economic
and short term physical well being. Such modern forms of bioprospecting result in the
fast track fabrication of monocultures which are more vulnerable and which lack a
context of balanced spiritual relationships. To emphasise the essential differences
again: the methodology of TEK fosters a relational understanding of bioprospecting
and conserves the environment in which it is produced. Whereas western
bioprospecting methodology has little concern for the environment from which
treasures are found, often damages the environment due to clumsy extraction methods
and finally produces isolated monocultures which are applied irrespective of their
original supportive interdependent network.
While spiritual valuing principles are not explicitly taught within scientific
methodology there is room for an expansion and transformation of western scientific
methodology in response to dialogue with TEK, particularly as related to issues such
as bioprospecting.
Martha Johnson conducted a comparison of TEK and western methodologies that is
useful in raising significant issues:
Traditional Ecological Knowledge:

is recorded and transmitted through oral tradition;

is learned through observation and hands-on experience;

is based on the understanding that the elements of matter have a life force. (All
parts of the natural world are therefore infused with spirit);

does not view human life as superior to other animate and inanimate elements;
all life-forms have kinship and are interdependent;

is holistic (whereas western science is reductionist)
24

is intuitive in its mode of thinking (whereas western science is analytical);

is mainly qualitative (whereas western science is mainly quantitative);

is based on data generated by resource users. (As such it is more inclusive than
western science, which is collected by a specialized group of researchers who
tend to be more selective and deliberate in the accumulation of facts);

is based on diachronic data (whereas western science is largely based on
synchronic data);

is rooted in a social context that sees the world in terms of social and spiritual
relations between all life-forms. (In contrast, western science is hierarchically
organized and vertically compartmentalized); and

derives its explanations of environmental phenomena from cumulative,
collective and often spiritual experiences. Such explanations are checked,
validated, and revised daily and seasonally through the annual cycle of
activities.55
This contrast may intentionally emphasise the differences between TEK and western
science, but it is acknowledged that there are varying degrees of how this is
manifested in sometimes more integrated ways on both sides. Nonetheless the
differences do create significantly different methodologies in how we relate to
ecological contexts.
For example, within certain American Indian tribes, a selection of corn seeds is done
that is intentionally representative of the full range of each harvest56. Not just the
largest healthiest ears of corn but also the small, less productive ears are chosen for
harvesting seeds. This is done out of the motivation of a number of spiritual
principals, but is ultimately a sign of respect and gratitude to the Creator for all gifts
received, not just the ones we appreciate at the time. The wisdom of this as a principal
in ESD is seen when one considers that today’s apparently weak strain of corn is
possibly tomorrows strong strain when environmental conditions change that suit its
own morphology, whereas at that same period of change, yesterdays strong strain may
become the weakest. Such relational understandings are not found in modern
methodologies which in this case would seek to develop the best strain of corn for our
current environmental conditions. So while we may have years of incredible harvests
of corn, at some point a new bacterial pest arrives on the scene which exploits its
unseen weakness and suddenly an entire global crop is devastated in one year due to
the nature of its monoculture. This has already happened with a number of crops such
as the great watermelon blight in the united states in the last decade. Although most
would fail to link this with any form of spiritual principles.
55
Martha Johnson, Research on Traditional Environmental Knowledge: Its Development and Its Role,
in Lore: Capturing Traditional Environmental Knowledge 3, 4 (Martha Johnson ed., 1992).
56
Raymond Pierotti and Daniel R. Wildcat, “Traditional knowledge, culturally-based world-views and
Western science”, p. 197, Cultural and Spiritual Values of Biodiversity, Darrell Addison Posey (ed.),
1999, UNEP
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Lastly I want to explore a “coincidence” that has been recently “discovered” in the
west related to cultural knowledge. There is an acknowledged inextricable link
between biodiversity and cultural diversity57. The areas of the planet which are
considered “megadiverse” in the levels of biodiversity are correspondingly
megadiverse in Indigenous cultures. The majority of the worlds cultural biodiversity is
representative of Indigenous populations. As previously mentioned, of the 6000 or so
languages spoken on the planet, up to 5000 are Indigenous. Of these 5000 languages,
nearly 2500 are under threat of immediate extinction with the current generation.
Is this correlation between Indigenous diversity and biodiversity merely a
“geographic” coincidence? This link is considered an ‘inextricable one’, which would
lead one to think that the relationship is more substantial than coincidence. But Why?
Biodiversity and cultural diversity are mutually reinforcing contexts. Returning to the
proposed theory of culture – biodiverse ecological contexts provide rich spiritual
contexts which evoke equally diverse human responses. Such is the role of
biodiversity in facilitating cultural diversity. Alternately, indigenous culture
recognises and respects their origins in the land and this facilitates a form of
custodianship where a sense of responsibility for caring for and preserving their local
ecosystem is created. Thus biodiversity is sustained by the cultures it creates.
We must also return to the western metaphysics developed since the enlightenment
that suffers from spiritual neurosis. Such is the western world view that nature is
separated, objectified and denigrated as a commodity to be processed for
consumption. To put it in a nutshell, western metaphysics treats the earth as a business
in liquidation. As this metaphysics of liquidation is by far the major power in the
world, it has the most influence on human and environmental relations. Thus it is no
coincidence that the planet is seeing the greatest rate of extinction since the dinosaurs,
in terms of biodiversity, with similar rates of extinction occurring in indigenous
culture.
Tragically, those cultures who have the solution to the environmental crisis58
embedded in their community life are being wiped out. Indigenous peoples thoroughly
57
The Declaration of Belem, issued at the first International Ethnobiological Congress, 1988 issued a
statement that there is an “inextricable link between cultural diversity and biological diversity” and that
there is a 99% correlation. Since then this statement has become widely accepted and is now commonly
found in the introductions to many environmental law textbooks and with documents formulated by
related international institutions such as the IUCN. Such acceptance has occurred without an associated
body of research into the possible causal properties of the ‘link’. Such research is essential in its
potential support for integrated legal regimes that take into account the interdependence of this link.
58
It could be argued that the central concern of modern environmental ethics is to formulate an
acceptable model of intrinsic value theory that will ensure an appropriate relationship between western
civilisation and nature. Such formulations are often synthetic creations of western philosophy that are
often problematic in that they rely on the resources of philosophy that arose out of the enlightenment.
Strangely, there has been little engagement of how indigenous metaphysics provide just a vision of
intrinsic spiritual value of nature. In direct response to the most central concerns of environmental
ethics, many indigenous communities provide a vision of nature that is characterised by:
1) A balance between both anthropogenic instrumental value and non-anthropogenic intrinsic value;
2) Agency and intentionality;
3) Uniqueness in value, function and purpose;
26
embody the principles of spiritual interdependence with their ecosystems, to the point
where their self-identity IS their ecosystem. The truth of such self-identification is
proven true when one reflects on the coincidence between the extinction of great
numbers of ecosystems and the Indigenous cultures that are interwoven with them.
Conclusion
In considering some of the issues discussed in this paper, a number of implications for
legal development arise.
In the medium term, support is lent towards the development of more integrated legal
regimes between human rights law, international environmental law and IPR law.
Such integration is necessary to protect all three levels of value associated with
indigenous knowledge. The unique values of ‘products’, ‘processes’ and ‘people’ that
have already been discussed in section 2.4.2. Most essential is the protection of the
the communities of indigenous people, manifested in their right of self-determination
to continue to manage the resources of their local environment59. Ultimately the
evolution of soft law frameworks of such integrated methodologies should eventuate
in an internationally binding treaty that supports such protection. However, it is not
anticipated that such an international treaty would be ratified by all nation states based
merely on ethical considerations.
Supportive towards the eventual adoption of an internationally binding treaty that
adopts such concerns is the further exploration of the inextricable link between the
survival of indigenous culture and biodiversity. Such studies support the recognition
that the very survival of western civilisation may be dependent on preserving both
biodiversity and indigenous communities. Likewise for those more ‘commercially’
minded nation states, such vital research will demonstrate the long term economic
pragmatism of committing to such an international treaty.
Additionally, the enterprise of recognising the spiritual concerns of indigenous
peoples implies a self-examination of law that requires a long-term transformation of
capacity to recognise more relational forms of existence. A genuine engagement
between the west and indigenous peoples wisdom implies a potential ‘Copernican
shift’, or ‘second enlightenment’ in a renewal of the capacity of law, and indeed all
disciplines, to meaningfully relate physical and spiritual principles that consequently
lead to a healing of the breach caused by the fracturing of relationships from the ‘first
enlightenment’. The move beyond the positivistic metaphysics introduced by the
4) Authentic interdependence (authentic relational ontology);
5) Provision of a non-anthropocentric basis of ethics;
6) Possesses the capacity for infinite emergent intrinsic spiritual value.
59
Although it has been beyond the capacity of this paper to discuss, the authors feel that within
Australia, facilitating authentic education resources for indigenous people is essential in this regard. To
provide an example, in the United States there are over 25 community colleges and 4 universities that
are all run by and for indigenous peoples, and funded by the government. These educational
institutions, to varying degrees, facilitate the preservation of language and culture necessary for the
long-term preservation of IMK. By contrast, in Australia, there is not one federally funded indigenous
community college or university.
27
enlightenment is already occurring in a number of disciplines such as ecology, but has
yet to be seriously engaged in legal science. In the long-term, until such relationships
can be acknowledged, the true concerns of indigenous peoples regarding the
exploitation of their knowledge cannot be adequately addressed by any form of current
law.