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An interview with Fiona Martin, Associate Professor of UNSW Business School, exploring the management of Indigenous Knowledge and intersections of intellectual property law with the Indigenous concept of custodianship.
Traditional knowledge has evolved over millennia and passed through generations by practice and word of mouth. Indigenous people view this knowledge as belonging to the land, rather than any single individual – in what is referred to as custodianship.
Generally, Western minds think in terms of knowledge ‘ownership’, which is vastly different to the Indigenous view and – at the core of that difference is the crux of what is a fascinating but complicated process of managing and protecting Indigenous knowledge.
Fiona, tell me a little bit about yourself
I wear a lot of hats! I’m a Solicitor of the Supreme Court of New South Wales, the Federal Court and High Court of Australia. I have a strong interest in tax and taxation law – in fact, I completed my law degree while working at the Australian Taxation Office! In my career, I have straddled both the private and public sectors. But it wasn’t until I was doing some research into mining payments on a working party with the Minerals Council of Australia, that I became aware of impacts of western law and activities on Indigenous communities and land. It was through this work that I found myself developing expertise in assisting Indigenous charities.
Ok – tax and Indigenous knowledge – honestly, not the first place my mind went!
You wouldn’t be the first to say that – actually our project team is an incredibly diverse group with a wide range of expertise. For example we have an environmental lawyer, a couple of intellectual property specialists, a leading Aboriginal lawyer, a database technology expert and an Indigenous PHD student to list just a few. As I mentioned we’re a very diverse crew, hand-picked by Professor Natalie Stoianoff from UTS, the lead chief investigator on the project. We were all selected from varying professions and represent several universities and organisations – it’s all part of what makes this project interesting.
Tell me more about the project
The Garuwanga project builds on a White Paper that was prepared by Natalie and her colleagues in the UTS Indigenous Knowledge Forum for the NSW Office of Environment and Heritage and seeks to develop a culturally acceptable, competent authority to govern and administer a legal framework for the protection of Indigenous knowledge nationally. The project has received funding through the Australian Research Council Linkage Grant Scheme, it commenced last year and is to be carried out over three years. It is part of a global effort prompted by the Nagoya Protocol under the UN Convention on Biological Diversity. Signatories to the protocol commit to establishing a competent authority to govern and administer consented access to Indigenous traditional knowledge.
That sounds big, how does one even begin to approach such a task?
Well community engagement is very important and integral to our approach. However, this sounds simpler than it is in reality, as the way we engage communities will be different in many areas. At all times we are guided by the communities. While some areas may be comfortable with a regional approach – others may require a local approach that involves just one or two communities.
We’ve already started engaging with communities, however in 2018 we will visit with those that are represented by members of our investigation team. From there, we will consult with the communities on how to best establish a competent authority.
Why is this work important to not only Indigenous Australians, but all of us?
Well there are a number of more obvious risks such as the range of ways that the knowledge can be diluted or lost, also the fact that knowledge can be exploited – which we have already seen cases of – think of boomerangs and cheap fake copies of indigenous art that is made in other countries by non-Indigenous factory workers. Then there are the wider and much more significant implications of not protecting this knowledge from an economic standpoint. For example, when ABC Company comes across Indigenous Knowledge, say a flower or fruit which Indigenous Australians know has certain medicinal qualities – there’s currently nothing to stop that company from taking the knowledge, setting up production in another country and reaping the financial benefits with no proceeds going to the original custodians of that knowledge.
That is terrible! Can’t they just sue them?
Not really, because copyright law only extends 70 years after an author’s death and a patent only protects inventions for 20 years – further, Indigenous knowledge doesn’t necessarily fit in either space. If we’re talking about traditional stories, for example, there may not be protection because the authors are lost in history. This poses some difficult questions such as: Who is the owner? Who should receive the benefits? How can they be shared? Another complexity to add to the mix is the interface of Western law, which assigns rights to individuals, whilst Indigenous law recognises custodianship by the community but governed by traditional ‘law bosses’ who are empowered to make decisions regarding the protection and use of environmental and cultural resources.
It’s becoming apparent to me just how complex this is. What other challenges does the team face?
Well to elaborate on the above example, attempting to apply western legal structures which are hundreds of years old, to cultural constructs which are thousands of years old, presents a significant challenge. Further, western structures don’t often gel with Indigenous constructs or even other cultural constructs around the world. For example, in some Asian countries copyright and trademark law were, until recently, foreign if not alien concepts. It is why we still see counterfeit material (think fake Louis Vuitton designer bags) coming out of some Asian countries – because culturally, some people still don’t accept trade mark or copyright law.
I could talk to you about this for days, but I’ll end with one final question. How do we engage non-Indigenous communities to understand the importance of this project and to play a part?
It’s a good question and I’m not sure I have the whole answer, but I’ll touch on what I alluded to earlier, which is that the loss or exploitation of this knowledge affects all Australians. There are potential jobs to be created and economic benefits in leveraging this Indigenous Knowledge and in protecting the cultural and economic rights of the original custodians. Our entire country can benefit by ensuring that, rather than some nameless company coming in and conducting production offshore, that we are able to do this in our own country, by engaging both Indigenous and non-Indigenous communities and reap the benefits together through negotiated outcomes.
Thanks Fiona for your time.
For more information on the Garuwanga project, please contact: Professor Natalie Stoianoff, Lead Chief Investigator – University of Technology Sydney