safeguarding indigenous cultural heritage during commercialisation of native plants

Cooperative Research Centre forRemote Economic Participation

Safeguarding Indigenous Cultural Heritage during Commercialisation of Native Plants

L. Slade LEE

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Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

acknowledging:Yuggera (Jagera) & Turrubal groupand Quandamooka people

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the case:• legal• moral & ethical• reconciliation• attributes

the mechanism:• laws• conventions• marketing

the aim:• accommodating hereditary custodianship

and Traditional Knowledge during commercialisation

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

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the issue:• Traditional Knowledge

◦ value (Indigenous cf. Western)◦ utility & spiritual◦ customary rights

• hereditary custodianship◦ acknowledgement◦ consent◦ protection◦ benefit-sharing

• principles◦ commercialisation◦ moral & ethical◦ reconciliation◦ attributes◦ approaches

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

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• traditional significance◦ utility◦ totemic spiritual◦ cultural (stories, dance, art)

• commercialisation – utility only◦ exploitation of a resource◦ utilisation & processing

product◦ no connectedness with

tradition

the question of attributes:

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

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◦ defined term cf. in perpetuity ◦ defined owner cf. collective ownership◦ defined in writing cf. preserved in oral

culture◦ specific in nature cf. general or vague

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

it’s the law:• IP Law vs. Traditional Knowledge

& Customary Law

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it’s the law:• IP Law and customary heritage rights

◦ fundamentally incompatible ◦ do not acknowledge each other◦ unsatisfactory mechanism for

safeguarding Traditional Knowledge or cultural heritage

◦ but are under review by international law and under the CBD

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

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• disadvantages◦ legalese is confronting◦ expensive◦ complex

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

it’s the other laws:• innovative legal approaches to

safeguarding cultural heritage◦ the ‘many irons’ approach – Janke◦ sui generis – Drahos

◦ finessing the law – Martin & Jeffery

◦ the ‘many irons’ approach – Janke, Drahos

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• market-based approaches to safeguarding cultural

heritage▫ governed by law:

◦ Trademarks◦ Certification◦ Registered Designs◦ Geographical Indications

▫ cooperative and collective:◦ FairTrade◦ trade secrets

it’s the other other ways:

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

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• disadvantages◦ trades on goodwill ◦ legal enforceability

it’s the other other ways:

• advantages◦ inexpensive◦ straightforward

Safeguarding Indigenous Cultural Heritage

during Commercialisation of Native Plants

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Acknowledgements:

Partner Student Supervisors

Advisory Group

Thank you

Project Partners

Special thanks to Kylie Lingard her for advice & enthusiasm