Indigenous Biocultural Rights and the Issue of Misappropriation

Lessons from Patent Landscaping and Customary Law

Since the early 1990s there has been considerable concern and activism from indigenous organisations and NGOs about the issue of ‘biopiracy’ or the misappropriation of indigenous knowledge and associated biological resources. There have been several high-profile cases, but no systematic attempt to quantify the scale of the problem. With a number of indigenous and non-indigenous collaborators we have been conducting patent landscaping in Australia, Aotearoa New Zealand and the Pacific to quantify and unearth concerning patents. We are gradually analysing a number of case studies and highlighting indigenous law or customary law associated with those species and their indigenous uses across this region. These case studies build a strong case for the recognition of indigenous biocultural rights, where species may be sacred, use may be secret, species are totemic, are part of Indigenous Australian’s Dreaming stories, or where monopolisation might otherwise be seen as bio-culturally offensive. The paper notes the new legal mandate of the Nagoya Protocol and discusses some potential options for better recognition of indigenous biocultural rights.

Daniel Robinson, Associate Professor, Arts and Social Sciences Faculty at the University of New South Wales (UNSW), Sydney, Australia

Respondent:
Jane Anderson, Associate Professor in the Department of Anthropology and Program in Museum Studies, New York University