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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.

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

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 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 particular investigations of such neglected areas. Therefore it is conceded that in offering a breadth of vision, attention to detail is a necessary compromise. 3

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 related pharmaceutical products3, or roughly 25% of the entire pharmaceutical market4

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. 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 4 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 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

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

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 self- determination 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.

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.

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

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

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

13 p.464-465, Indigenous Legal Issues, 1997 ed. 14 Ricketson, Sam, Intellectual Property: Cases, Materials and Commentary, Butterworths, Sydney, 1994, at 6. 7 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 'self-management' 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.

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

15 Johnson v McIntosh (8 Wheat 543; 5 L Ed 681) 16 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 22 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. 8

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.

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

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 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) 9 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 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

27 Kate & Laird, at 62 10 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 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

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

“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 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

29 Walter Reid, “The Economic Realities of Biodiversity”, Issues in Science & Technology, Winter, 1993-4. 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: Springer- Verlag. 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 12

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 self- determination that ultimately facilitates the preservation of such knowledge34.

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 self- determination 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

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 self- determinations 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 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.

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 14

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.

-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

35 (1991) 21 Intellectual Property Reports 481. 36 (1995) 91-116 CCH Australian Intellectual Property Cases 39,051. 37Ibid, at 39,077. 38 (1991) 2 Intellectual Property Reports 481 at 490 and 492. 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 15

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 long- term 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 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

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). 41 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 16 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.

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

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 17 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.

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

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 18

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.

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.

Aboriginal Studies 2-13 19

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:

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 20

'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 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.

53 Maddox, Marion, ‘Indigenous Religion in Secular Australia’, Research Paper 11 1999-2000, Department of the Parliamentary Library, 1-2. 54 Ibid 21

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 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 self- designing 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.

22

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.

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. 23

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)

 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.

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). 24

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.

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.

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 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. 25

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 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

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; 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. 26 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 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.

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