Many species are also important in a growing 'bush food' industry. The pharmaceutical industry is arguably the largest commercial user of plant genetic species, and the development of these products can create significant opportunities for economic growth for this industry sector. The diverse range of interests in biodiversity raises questions about how to reconcile what may sometimes be competing interests and values in the natural environment. For example, the conservation of biological diversity may be at odds with the potential economic values and uses of biological diversity.
This then raises questions as to how we assign values to nature: can nature be measured in scientific or monetary terms?
Who 'owns' nature? Is the natural environment to be preserved as the collective heritage of the nation, or is it to be subject to the various demands, claims and interests of particular individuals, communities or groups.
Who ultimately stands to benefit most from the harvesting of natural resources-governments, communities, or others? Can there be a sound balance between the conservation and protection of biodiversity for its own sake, and the sustainable uses of it? Among the diverse interests in the natural environment are those of Indigenous peoples. There are many aspects to Indigenous peoples' claims and interests in the natural environment and biological diversity.
Indigenous peoples seek recognition and protection of their distinct rights in knowledge of, and practices relating to the management, use and conservation of biological diversity. They also seek the introduction of measures to prevent exploitation of their knowledge, and compensation or financial benefits from the uses of their knowledge, innovations and practices. At the same time, some customary Indigenous practices such as hunting, fishing and gathering-often little understood by non Indigenous people-provide potential conflict with conventional conservation and environmental management laws, programs and activities.
It is important to recognise that there is the same diversity of views among Indigenous peoples as there is in the wider community. Some Indigenous people may wish to preserve biodiversity related knowledge as their collective heritage, while others may see potential economic benefits to be gained by allowing the use by the wider community of their biodiversity related knowledge and practices.
Some of these issues become apparent when considering the use of biological diversity for pharmaceutical and other products-an activity known as bioprospecting. Bioprospecting is the name given to the search for useful plant related substances that can be developed into marketable commodities such as pharmaceuticals, pesticides and cosmetics.
Increasingly sophisticated biotechnological processes are used to transform plant derived substances into commercially successful products with global markets. The patenting of products and substances derived from the natural environment has particular implications for Indigenous peoples' claims.
A patent is an important component of industrial property law that confers exclusive rights on the creator of an invention.
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The conditions required for a patent are that the invention-either a product or a process-should be new, non-obvious i. Another requirement for a patent is that the invention should be clearly described and documented and made available to wider society e. The neem tree Azadirachta indica is found widely throughout parts of India.
It forms a central part of Indian communities' culture and heritage. It is used by these communities for a vast range of purposes such as in medicines, toiletries, insecticides, fertilisers, and in agriculture. From the early s, the neem tree began to attract the attention of United States and global markets.
In a US timber importer noted the properties of the neem tree, and began importing it. Following testing for a pesticidal product derived from neem extracts, the importer received clearance for this product from the US Environmental Protection Agency in , and in he sold the patent for the pesticide to the transnational chemical company W. The patenting and marketing by Grace of products based on neem derived substances led to a debate about the appropriation of the intellectual property of Indian communities.
Indian and Third world critics of Grace's approach claim that the preparation of neem based products has been part of the collective community knowledge of Indian societies for millennia, and should not have been patented by Grace. They refuted the assertions by Grace that its methods for developing neem based products were novel, non-obvious and based on extraction methods that constituted an innovative technique, and therefore amenable to patenting.
Instead, the critics argued that the extraction and preparation of active substances from neem is a traditional innovation based on millennia of collective knowledge and practice. The critics state that:. Patent claims on the various processes and products of the neem that are built on the vast cultural and intellectual heritage of the Indian people, reflect a total devaluation of the country's intellectual heritage and an arrogance based on the assumption of superiority of western sciences. The bioprospecting and patenting of the neem tree has parallels in Australia, as illustrated by the case of the smokebush.
The smokebush is the common name for Conospermum , a plant that is widespread throughout parts of western Australia and in parts of some other states. It was used traditionally by Aboriginal peoples for a variety of therapeutic purposes. In , some specimens were sent to the US where they were tested for possible anti-cancer chemicals.
No cancer resistant properties were found, and the samples were stored for several years. Later, in the late s, these samples were again tested, but this time for potential substances that could cure AIDS.
A substance called Conocurvone was isolated which, when laboratory tested, was found to destroy the HIV virus in low concentrations. To develop this substance, in the early s the WA Government granted a license to Amrad Pty Ltd, a Victorian based multinational pharmaceutical company.
Given these commercial values on smokebush and its derivatives, critics argue that there should be provisions for Aboriginal peoples to share equitably in benefits from this plant, given their role as first having identified and used the smokebush for its therapeutic and healing properties. The collecting and screening of smokebush by scientific interests has been facilitated by the Western Australian Government's use of its Conservation and Land Management Act This Act was amended in to include a clause specifically designed to encourage state control over biological resources.
Some have argued that these amendments disadvantage Indigenous peoples who claim rights to species, or knowledge of species in Western Australia, favouring instead, state and industry interests in these. These examples of bioprospecting and patenting of biological and genetic products raise issues about what is patentable subject matter.
Patent law generally defines subject matter that is deemed patentable in terms of what subject matter is excluded from patent applications. These exclusions usually comprise discoveries of materials or substances that already exist in nature, plants or animals or products from these, or biological processes other than microbiological processes for the production of plant or animal varieties or products. The loss of rich biologically diverse environments such as the Amazonian forests through activities such as logging, land clearance and mining and development has profound consequences in its impact on the culturally diverse groups of Indigenous peoples whose livelihoods depend on these environments.
There is in this sense, a direct relationship between biological diversity and cultural diversity; maintenance of the former can help preserve the latter. The reverse is also true, since Indigenous peoples are often the custodians and stewards of biological diversity, the maintenance of cultural diversity is an important factor in the conservation of biological diversity. Despite these important links between cultural, and biological diversity, the recognition of cultural diversity does not necessarily always exist in harmony with the preservation of biological diversity.
The preservation of cultural diversity is taken to include having a respect for, and maintaining Indigenous peoples' rights to hunt, fish and gather according to their customary laws and practices. These practices, as shown below, sometimes conflict with the interests of conservation and environmental protection. Ultimately, solutions need to be found that can provide a balance between the recognition and protection of Indigenous cultural rights, and the interests of conservation.
Joint managed protected areas, regional and local agreements, and similar types of arrangements discussed below may provide some opportunities for this balance, based on a 'new Australian land ethic'.
Indigenous peoples have long had a significant interdependence with the lands and environments in which they live. These lands and environments are vital for their survival, providing a wide array of substances for food, shelter and implements. They also provide a source for a variety of objects for both ritual and everyday use. The land and environment is also significant in Indigenous peoples' cultural, religious and social systems.
Indigenous peoples are custodians and stewards of their lands and environments, and have been entrusted by ancestral charters to care for these through successive generations. The land, its features, environments and products form cultural landscapes, which are given significance by Indigenous belief systems. These cultural landscapes are both the result of, and provide the focus for, ancestral events.
Together with Indigenous peoples' social, political and religious systems, lands and environments are interwoven into a tightly integrated cultural system that derive their meaning from the Dreaming. This integrated cultural system forms the basis for Indigenous knowledge. Indigenous people have a vast knowledge of, and capacity for developing innovative practices and products from their environments. The following distinctive features characterise indigenous knowledge:.
Knowledge is a fundamental component of Indigenous culture, and must be considered in terms of both its sacred and secular dimensions. To Indigenous peoples, knowledge is not considered independently from its products and expressions, or from actions. These all form part of a closely integrated cultural system. The physical products and expressions of Indigenous cultures are intimately connected to the knowledge from which they derive, or with which they are associated.
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Products and expressions of Indigenous knowledge systems include ceremonial and ritual objects and performances, artistic designs, works and expressions, and song, dance and story, and subsistence and land and environment management activities such as hunting, fishing and gathering, and the use of fire. Systems of knowledge, and their products and expressions are vital to ensuring the continuity of Indigenous cultures, and are important vehicles for enabling Indigenous peoples to adapt their societies and cultures to introduced societies, cultures and technologies. Indigenous ecological knowledge is expressed in many ways.
Some particularly important expressions are customary practices such as hunting, fishing and gathering. Since these activities require knowledge of customary ways of procuring these resources, the exercise by Indigenous peoples of their rights to carry out these activities in accordance with their laws and customs may be regarded as a demonstration of their assertion of their rights to their traditional knowledge systems.
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Indigenous customary hunting, fishing and gathering practices may therefore be considered aspects of rights relating to land:. While caution needs to be exercised to avoid classifying the incidents of Aboriginal title in terms of English property law concepts, it seems clear that fishing, hunting and gathering rights can comprise part of Aboriginal title to land.
Another writer argues 'not only is the recognition of Aboriginal fishing and hunting rights compatible with common law concepts of interests in land, but may in fact act as a catalyst for preserving those resources for their common enjoyment and use'. These statements support an argument that it is not only possible, but necessary to devise a system that can meet the objectives of both conserving biodiversity, and also protecting Indigenous customary uses of biodiversity. Conservation and resources legislation varies in all jurisdictions in terms of whether provisions allow for Indigenous customary or traditional practices.
In many cases, legislation includes some exemptions for Aboriginal people from regulations governing hunting, fishing and gathering. These exemptions provide limited recognition of Indigenous peoples' 'traditional' activities concerning land use. In an Aboriginal elder from the Gungalida people in Queensland was found to have contravened the Fauna Conservation Act Qld by taking bush turkey. The plaintiff had argued that his actions were carried out in accordance with his customary entitlement to take the animal. The High Court's decision was based on whether the action by the Aboriginal man had contravened The Criminal Code Qld through an 'offence relating to property'.
The competing priorities and interests between Indigenous customary hunting, fishing and gathering activities, and conservation were among the issues considered in the Australian Law Reform Commission's report on The Recognition of Aboriginal Customary Laws. That report recommended some guidelines to be incorporated into legislation in all jurisdictions. These guidelines suggested:. Indigenous peoples have for a long time advocated their wish to be recognised as having unique rights, based on their distinct Indigenous status.
While the focus in the quest for Indigenous rights has been on land rights, Indigenous peoples assert that they also have rights in the biological resources on the lands, and in the knowledge they possess of these resources.