Traditional knowledge and biodiscovery
In September 2020, the Biodiscovery and Other Legislation Amendment Act 2020 introduced protections for accessing and using First Nations peoples’ traditional knowledge in biodiscovery. An example of using traditional knowledge in biodiscovery could be learning about the traditional medicinal uses of a plant from First Nations peoples, then using that knowledge to conduct research with a view to produce an anti-inflammatory cream.
These reforms reflect international developments since the Biodiscovery Act 2004 was first passed, particularly the Nagoya Protocol to the Convention on Biological Diversity.
Traditional knowledge obligation
The traditional knowledge obligation requires that an organisation takes all reasonable and practical measures to only use traditional knowledge in biodiscovery with the agreement of the custodian of the knowledge. In general, you must only use traditional knowledge with the free, prior and informed consent of custodians and mutual agreement on the terms of benefit sharing.
The traditional knowledge obligation applies to native biological material collected anywhere in Queensland. You are required to seek the custodians’ agreement for use of their knowledge, even if the material you are collecting is not sourced from State land or Queensland waters.
If you are using traditional knowledge and collecting material from State land, you must enter into an agreement with the custodians of the knowledge as well as obtain the necessary Queensland Government approvals.
The State will not be involved in agreements for the use of traditional knowledge — they will be between the biodiscovery organisation and the custodian of the knowledge.
Traditional knowledge code of practice
A Traditional knowledge code of practice is being developed to help entities understand and comply with their obligations. While following the code will be one way of fulfilling the traditional knowledge obligation, it will not be the only way.
The code will outline the minimum steps required to fulfil obligations under the Biodiscovery Act 2004, including seeking the free, prior and informed consent of custodians for use of traditional knowledge and negotiating benefit sharing on mutually agreed terms. It will also include:
- the circumstances in which the traditional knowledge obligation applies
- how to identify the right person(s) to seek consent from and negotiate benefits with for use of traditional knowledge
- what constitutes 'reasonable and practical measures to seek agreement' in different circumstances, such as when accessing and using traditional knowledge that is in the public domain.
The Department of Environment and Science (DES) is currently developing the code in consultation with First Nations peoples and biodiscovery entities.
Until the code is published, you cannot be prosecuted for not meeting the traditional knowledge obligation.
However, it may be particularly important to seek the agreement of traditional custodians when using traditional knowledge in biodiscovery if you wish to collaborate with overseas partners, which may require you to demonstrate that the samples and knowledge were accessed in accordance with the Nagoya Protocol.
Read about how the Nagoya Protocol is implemented in other countries on the Access and Benefit Sharing Clearing House.