Protecting indigenous rights is key to a sustainable future
Resources in the natural world are declining at a rate unprecedented in human history and should be a sobering and urgent call to action.
Political agendas look to clean technology and environmental innovation as core to finding the solutions. The importance of indigenous peoples and local communities’ engagement is underestimated, as are the benefits to be derived from their knowledge.
This knowledge has the potential to significantly alter our current world trajectory and help redress immediate and future challenges, especially in an ecological and sustainability context.
After all, indigenous peoples represent modalities for survival exemplified by the indigenous peoples of Australia, whose continuous living histories exceed 60,000 years.
Their knowledge of the land on which they live, their reverence of it and custodianship practices have been integral in that survival, yet are only now starting to be recognised and appreciated by a broader audience.
This is particularly true at the environmental level, where understanding and ‘caring for country’, including fire management, healthy, living soils, and the practices of restraint, are being heralded as core insights.
Respectful working with tradition
With a knowledge font that extends to nearly 476 million indigenous peoples, representing 5,000 cultures and spread across 90 different countries, the opportunities for better understanding of how to manage our relationship with the natural world are broad, and the opportunities for environmental technology innovation are significant.
Hand in hand with this is the opportunity to improve collective understanding and respectful working with indigenous knowledge and its traditional custodians, as well as how to better integrate concepts of indigenous cultural and intellectual property and realise the opportunities that exist as a consequence.
Innovation has long been seen as the hallmark of success of intellectual property regimes. Since the inception of notions of reciprocating protection by means of time-limited economic monopolies in return for knowledge-sharing, patents have been the indicia of innovation success, supported by trademarks as indicators of authenticity and source connection.
Western presumptions
The difficulty with employing conventional systems for protecting IP rights is that when encouraging and fostering innovation, which may have a basis in the traditional knowledge of indigenous and local communities, the presumptions of that modelling do not always fit.
Western IP systems focus on individualism, alienability and characterisation of that which can be reduced to material form in return for a time-based economic right.
In indigenous cultural knowledge systems the focus is on preservation of culture through the knowledge phase, for which there is custodianship and collective passing, and which of itself is a timeless connection. Any transference of knowledge is subject to cultural considerations and all aspects are interrelated.
In this context, a long and prolific history of appropriation/misuses and unauthorised use has systematically managed to exploit that traditional knowledge and its expression, all the while eroding opportunities for indigenous livelihood, self-determination, dignity and identity.
Fundamental inequities, denial of entitlements, and base atrocities—which continue to challenge the identity and survival of indigenous peoples and local communities—are human rights issues most often sought to be redressed through civil and political activism.
Indigenous cultural and intellectual property is integral to that identity and survival, and its protection has become progressively embodied within the international human rights framework.
In particular this has become embodied within Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (2007) to “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”
Much-needed framework
To date, however, practical efforts to formalise these rights have often stalled around the discussion of the extent to which conventional IP systems could (or even should) be utilised to protect indigenous peoples’ knowledge and cultural practices.
The development of a framework that enhances and enables indigenous peoples’ perspectives and participation is long overdue. Opportunities for knowledge-use, including those which evolve into innovation, have the potential to contribute socially, environmentally and economically—provided such use is seen to align with the respective indigenous community's defined values and needs.
In terms of the current climate crisis this would include overarching aspects of custodial governance and the responsibilities to future generations. At a time like this, when urgent, remedial and collective action needs to be taken to address issues such as resource scarcity and best land-management practices, we need to look at modalities that respect indigenous cultural and intellectual property so as to ensure preservation of that knowledge.
Capacity-building arrangements that enable appropriate information access for ultimate mutual benefit, and by adapting current IP systems or developing sui generis systems, creates the possibility of better preservation of indigenous cultural and intellectual property for its own benefits.
But it also allows for the encouragement and growth of innovative progress, particularly when it enhances understanding and support of the nature-based solutions which are increasingly necessary for collective survival. This is an essential link recognised with the integration of indigenous knowledge systems in the UN Sustainable Development Goals for 2030.
Review of current IP systems
After a long hiatus, certain countries are becoming increasingly engaged in the process of re-evaluating and reviewing the limitations of the current IP systems and the protections being afforded to indigenous cultural and intellectual property as a means of encouraging community-based innovation and creativity, and to promote economic development and legitimate/appropriate trading opportunities.
This has included, for example in the case of IP Australia, an extensive research and community consultation project, with the simultaneous education and promotion of the protection that can be obtained from the current IP systems, notwithstanding its limitations.
On IP Australia's website is an Indigenous Knowledge (IK) IP Hub which comprises a wide collection of resources compiled to assist in the understanding of IK and the important role it plays within indigenous communities, both culturally and as a beneficial asset.
Efforts are being directed both at those wishing to work with IK as part of a business, but also to assist indigenous businesses which may be engaging with their IK in a business sense to understand the intellectual property issues.
As part of this initiative the Yarnline programme was set up, a call-back service offering help and support to better understand IP. While a consultation update is awaited, the core guiding principles underpinning engagement have been the principles of 'control, protection, recognition and respect'. These are values reflective of those contained within Article 31 of the UN Declaration on the Rights of Indigenous Peoples.
At the international level the World Intellectual Property Organization (WIPO), via the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), has been progressing text-based negotiations relating to protection since 2010. A diplomatic conference on the topic will be held no later than 2024.
While significant gaps remain in the current negotiations, an agreed commitment to dedicated negotiation rounds is considered to be significant progress.
Women entrepreneurship and business
In the meantime, WIPO has been making practical progress in this area with the initiation of positive programming to assist women entrepreneurs from indigenous and local communities to utilise IP systems and enhance their own economic positions.
The WIPO Women Entrepreneurship Programme (WEP), which continues to evolve with both practical and virtual workshops and mentoring programmes, recognises that women play an integral role in many indigenous communities in maintaining and retaining traditional cultural practices.
WEP acknowledges that by the preservation and transmission of that traditional knowledge, women have opportunities to preserve its significance for their communities but can also be a tool for their social and economic empowerment.
The business of change
The difficulty remains that on all formal fronts the politics of engagement makes the formalised change process slow. However, businesses do not need to wait for the outcome of IP policy and practice discussions to provide an opportunity for collective community-driven change.
Tangible differences can be made through commercial actions and the businesses-modelling of engagement; promoting the respect of traditional cultures; recognising the need for prior informed consent; ensuring acknowledgment and remuneration by different access models including fair and equitable benefit-sharing; improved collaboration; and empowerment.
This might include symbiotic partnerships, as well as extending awareness programmes for businesses and corporations as to the appropriate and respectful engagement.
A future for all
Irrespective of that, however, given the manner in which indigenous cultural and intellectual property is held, used and passed on, indigenous innovation and knowledge systems can and will provide value to communities and the environment and drive the greater agenda of ensuring a future for coming generations.
By respecting the existence of this knowledge, and putting as best as possible a tangible value on it, indigenous cultural and intellectual property has visibility—and with that will come its vicarious protection.
By taking a genuine and authentic lead, a change in commercial actions, especially by business leaders, can create a more inclusive economy and result in positive social impact without legislative directives—all while awaiting changes to the conventional IP paradigms of protection.
Every business has within its own operational choices the capacity to be a climate change proponent and a human rights activist.
Marion Heathcote is principal at Davies Collison Cave, based in the Sydney office. She can be contacted at: MHeathcote@dcc.com
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