Customary laws and community protocols in the

Pacific: Next steps under the Nagoya Protocol

A/Prof Daniel Robinson (UNSW)

Dr Margaret Raven (Macquarie Uni)

Butmas Village, Santo, Vanuatu; Raui custom marine protected zones, Cook Islands

Contents

• Nagoya Protocol

- Traditional knowledge and customary law

• Indigenous knowledge futures – the project

• Patent Landscaping – how the process started

- Gumbi gumbi

• Biocultural community protocols

• Next steps

• Collaborations!

Legal certainty and transparency

Nagoya Protocol on ABS

2010:

• For providers: ensuring benefit-sharing

once GR leave the provider country

• Preventing misappropriation of GR and

associated traditional knowledge (aTK)

• For users: providing for clear and

transparent procedures for access to GR

and aTK

• In force since October 2014

• Currently (July 2018) 105 Parties

(incl. 5 Parties in the Pacific

region: Samoa, Fiji, FSM, Palau,

Vanuatu)

Art. 7 – Access to Traditional Knowledge (TK) associated with genetic

resources (GRs)• In accordance with domestic law based on prior informed consent (PIC)

of and mutually agreed terms (MAT) with indigenous and local

communities (ILCs)

Art. 12.3 – TK associated with GR• In accordance with domestic law take into consideration ILCs customary

laws, community protocols and procedures with respect to aTK

• With the effective participation of ILCs inform potential users of aTK about

their obligations for access and benefit sharing

• Parties shall support the development of

• Community protocols for access to aTK

• Minimum requirements for MAT ensuring BS

• Model contractual clauses for BS with ILCs

• Not restrict customary use and exchange of genetic resources and aTK

within and amongst ILCs.

The Nagoya Protocol: Access to TK

Indigenous Knowledge Futures:

• 5 Year Australian Research Council Discovery Project

• 5 years and 3 countries – Australia (starting with Kakadu

Plum and Gumbi Gumbi), Vanuatu (with VKS), Cook

Islands (Koutu Nui, Min Cultural Devt)

• Futures because – knowledge is not static, the

political/legal space is moving, promotion as important

as protection.

• Bio-cultural approach – recognising links between

culture and country, Dreamings or custom and

nature/plants/animals.

• Patent landscaping/mapping of

321 Australian native ‘economic

plants’ with known Indigenous uses

(Robinson and Raven, 2017)

• Use of ethnobotanical texts

(appropriated knowledge) to

identify further (mis)appropriations

• 1300+ patents and applications

identified

• Many mentioned Indigenous

knowledge existing for plants found

across Asia and the Pacific region,

showing similarities in indigenous

knowledge between countries

Patents, plants and knowledge

Ancient cultural landscape, Ubirr, Kakadu

• Prairie Creek - The Plains Homestead water hole on the Prairie river, is

the creation place for the Yirendali people, it is associated with the

ceremonial bush medicine, common name gumbi gumbi. It is the story

about the gumbi gumbi bush spirit, a women who lived alone by the

water hole, and one day while out gathering food, she came across a

male bush spirit. They courted and fell in love, and when the gumbi

gumbi spirit lady fell pregnant, she gave birth, and the baby came out of

the seed pod. This was the birth of the Moongaburra people, of the

Yirendali people.

• James Hill (Yirendali), cited in Constable and Love 2015, p34

• What other plants or animals have cultural significance?

• How does custom control or govern use and ownership of

species?

Gumbi Gumbi: Stories as a source of custom:

Pacific Patents:

• Piper methysticum (Kava): 129 Patent Families 197

Patents. Distribution – Pacific, across to Indonesia. TK

from Polynesia and Melanesia. Extensive ‘noble’

varieties from Vanuatu.

• Terminalia catappa (Indian Almond): 49 Patent

Families 100 Patents. Distribution wide across tropics,

significant TK in the Pacific.

• Hibiscus tiliaceus: 33 Patent families, 48 Patents.

Weedy growth, distribution wide across tropics. Some

TK specific to Cook Islands (and Tahiti?).

• Much more to come from Melanesia and

Polynesia!!

Photos By A16898 - CC BY-SA 3.0,

https://commons.wikimedia.org/w/index.php?curid=16660602, http:

//www.hear.org/starr/plants/images/image/?q=020803-0107

https://commons.wikimedia.org/w/index.php?curid=16660602http://www.hear.org/starr/plants/images/image/?q=020803-0107

Kava Custom and rights?

• In Vanuatu… individuals (and their families and lineages) may claim overlapping rights to kava

variet[ies], and would deny common cultural heritage. There are also (chiefly) titled versus

untitled, and male versus female, claims to use and exchange kava. On the island of Tanna, for

example, certain families have the right to consume specially grown and decorated kava tapuga at

festivals celebrating boys’ circumcisions (Lindstrom, 2009, p299)

• Unlike Kalo (Colocasia esculenta L.), there is no one well known and documented story of how

`Awa came to be in Hawai`i. Neither are there any known chants that recall which voyage or which

voyager brought `Awa to Hawai`i. It should not be assumed that `Awa came to Hawai`i on a single

migration, but more likely several times throughout the Polynesian era. There are, however,

several chants that contain references that indicate that `Awa came to Hawai`i from some land far

away. Accompanying these references is often the mention of the gods Käne and Kanaloa, the

famous `Awa drinkers (Winter, 2004, p24)

• What does it mean (in custom terms) to patent kava?

• Community protocols aim to

control incoming researcher/

company/ third party behaviour

and practices’.

• Protocol for engagement,

research/work with community

• ‘Bridging tools’ between custom

and state law.

• Biocultural statement of values,

intent and action from indigenous

peoples and local communities

(IPLCs)

What are biocultural community protocols:

Big Bay, Santo, Vanuatu

What are biocultural community protocols:

• Enables legal recognition (under

implementation of Nagoya), as

attachments to contracts or under

sui generis laws.

• Examples are mostly from Africa

and Asia. E.g. Gunis

• Usual process for development –

data collection,

workshopping/forum, then

community comment, then publish. BCP of the Guni Traditional medicinefarmers of Mewar includes: bio-

spirituality, FPIC, sustainable use,

ref to their rights under Indian laws,

etc.

Next steps:

• Fieldwork relating to

plant/animal species

and custom in

Vanuatu and Cook

Islands

• Development of

community protocols

where requested

Vathe Conservation Area, Santo, Vanuatu

Open to collaborations!

• Aside from the ARC Discovery I am involved in the following Pacific roles:

- Regional coordinator for the Access and Benefit-Sharing Capacity

Development Initiative (ABS Initiative) which has 5 years of Pacific

funding for ABS, TK, and Indigenous engagement activities.

- Academic Lead for Pacific – UNSW Institute for Global Development,

strategic coordination of Pacific research and activities at UNSW.

Funders/Partners – Direct and Indirect

Core Agencies/PartnersIndirect Partners

Funded by:

Sources for Further information

• ABS Initiative http://www.abs-

initiative.info/

• Swiss ABS management tool:

https://www.iisd.org/pdf/2007/abs_mt.pdf

• IUCN ABS books, manuals etc:

https://www.iucn.org/theme/environment

al-law/our-work/access-and-benefit-

sharing

http://www.abs-initiative.info/https://www.iisd.org/pdf/2007/abs_mt.pdfhttps://www.iucn.org/theme/environmental-law/our-work/access-and-benefit-sharing

References:

• Constable, J. and Love, K. (2015) Aboriginal water values Galilee subregion (Qld), a report for the

Bioregional Assessment Programme.

• Lindstrom, L. (2009) ‘Kava Pirates in Vanuatu?’ International Journal of Cultural Property, Volume

16, Issue 3, pp. 291-308

• Robinson, D.F. (2015) Biodiversity, Access and Benefit-Sharing: Global Case Studies, Routledge,

Oxon.

• Robinson, D.F. and Raven, M. (2017) ‘Identifying and Preventing Biopiracy in Australia: Patent

trends for plants with Aboriginal uses’, Australian Geographer, 48:3, 311-331

• Version of the paper available as Public Submission through IP Australia:

http://www.ipaustralia.gov.au/about-us/public-consultations/Indigenous_Knowledge_Consultation/

• Robinson D; Raven M; Hunter J, (2018), 'The limits of ABS laws: Why gumbi gumbi and other

bush foods and medicines need specific indigenous knowledge protections', in Lawson, C. and

Adhikari, K. (eds) Biodiversity, Genetic Resources and Intellectual Property: Developments in

Access and Benefit Sharing, pp. 185 – 207.

• Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits

Arising from their Utilization to the Convention on Biological Diversity (2010):

https://www.cbd.int/abs/text/

• Winter, K. (2004) Hawai’ian `Awa Piper methysticum. A study in ethnobotany. MSc Thesis,

University of Hawai’i.

http://www.ipaustralia.gov.au/about-us/public-consultations/Indigenous_Knowledge_Consultation/https://www.cbd.int/abs/text/