Domestic Biopiracy
Australia is one of 17 countries considered “megadiverse” (CBD, N.A), home to an estimated 700,000 native species. Due to the enormous genetic resources available it lends itself to biopiracy, making the protection of Traditional Knowledge essential. Aboriginal Peoples represent less than 1% of the commercial supply chain, from growers to farm managers to exporters, largely because high start‑up costs and regulatory problems deter community led enterprises (Becker & Mitchell 2019).
Legislation
Queensland Biodiscovery Act 2004
Despite Indigenous Culture and Intellectual Property (ICIP) Rights not being fully recognised in Australia, there have been reforms to challenge the rising threat of biopiracy. This is evident in the Queensland Biodiscovery Act 2004, amended in 2020 to align with the Nagoya Protocol. Biodiscovery refers to the collection and use of native biological material such as plants, animals and other organisms for commercial applications such as pharmaceuticals and insecticides (Queensland Government, N.D).
Queensland Government Logo (2025)
The amendment now requires that any commercial collection of native biological material secure:
Prior informed consent from Traditional Owners, and
Benefit‑sharing agreements that return a fair portion of profits to those Custodians.
The Act places pressure on other states to comply and update laws to avoid exploitation. There are concerns however about the Act not specifically outlining the importance and benefits of the collaboration with Traditional Custodians. Patrick Weir, Speaker of the Legislative Assembly in Queensland stated in 2020, “there is obviously a benefit in those products. We need to investigate those. Any possible cures that may come forth we need to encourage and use.” Therefore while the Act governs the collection and use of native resources, there is still a lack of collaboration with Aboriginal communities. Until all states adopt clear, enforceable standards for prior consent and equitable returns, Australia’s megadiversity will continue to present both an opportunity and a risk for Aboriginal communities.
Aboriginal Peoples collaborating with each other (N.D)
Traditional Knowledge and Code of Practice 2021
The Traditional Knowledge and Code of Practice 2021 (Queensland) was established in response to the ambiguous wording seen in the Biodiscovery Act 2004 to ensure that researchers do not use Traditional Knowledge for biodiscovery purposes without a written agreement with the Custodians of the community (Queensland Government, N.D). If such an agreement cannot be reached, the project must cease. The code ensures that there is proper community consultation, this is important as it allows Aboriginal Peoples to participate in matters that affect them. A limitation of the code is if an entity chose to undertake non-commercial research and they may wish to follow the code voluntarily, to comply with the Nagoya Protocol, this creates a pathway for researchers to abuse this power and sell information and benefits about the resources they have found to interested parties (Queensland Government, N.D). Therefore, while it was created in response to the unclear wording, there is still a lack of enforcement to ensure companies are following the correct protocols.
Patents
A patent is a form of intellectual property that grants exclusive rights to an inventor for a period in exchange for disclosure of the invention. This legal protection allows the patent holder to exclude others from making, using, selling or distributing the patented invention that is new, inventive, and useful (Arts+Law, N.D).
Under the Patent Act 1990 (Cth), Aboriginal Peoples long‑standing use of a plant, that has come from an uncultivated state, cannot be patented and is considered a “discovery”, leaving room for others to make minor modification to secure a patent, and exclude the original Custodians from commercial benefit thus making the wealth gap wider.
“Patents based on Traditional Knowledge are often biopiracy. A new international treaty will finally combat this” (Barba et al, 2024). The World Intellectual Property Organisation (WIPO), which is a United Nations Agency, has begun to address these injustices.
“ The global IP system must continue to incentivise innovation while evolving in a more inclusive way, responding to the needs of all countries and their communities ”
This highlights that steps are being made to recognise and collaborate with Aboriginal communities regarding genetic resources and Traditional Knowledge but within Australia that means:
Making the Traditional Knowledge Code mandatory for all research and commercial use.
A patent will not be approved unless they first get prior informed consent and have agreed to a fair benefit sharing deal; and
Ensuring that Aboriginal communities retain control over any databases used to assess patent claims.
Until these changes are made companies will continue to exploit Aboriginal Peoples knowledge for their own financial gain.
Control of Bush Foods
Bush medicine (therapeutic use) and bush foods (nutritional use) are interconnected, therefore the risk of biopiracy is high. To avoid this, if Aboriginal led bush‑food businesses were expanded, communities control their supply chains making biopiracy harder and the benefits stay within the community.
Under section 211 of the Native Title Act 1993 (Cth), Aboriginal communities may gather plants for customary purposes, but the Act gives them limited rights to sell those plants commercially. However, Government agencies can issue permits that let outside companies harvest the same resources. If Traditional Owners wish to trade bush produce themselves, they must apply for a Picker’s License, the same permit required for non‑Indigenous operators.
As start-up costs are high, non-Indigenous businesses control the majority of Australia’s $50 million native food market (Becker and Mitchell 2019).
“Regional and remote communities could capture far more of the market if the settings encouraged them to harvest and process their own foods”
When buyers deal directly with Aboriginal suppliers, more benefits stay within the community. By encouraging more Aboriginal Peoples to be involved within the bush food industry it will make it harder for cases of abuse to occur and more likely for the positive impacts to arise.
Australia still lacks a single law to stop biopiracy. The Biodiscovery Act 2004 (QLD), the Traditional Knowledge Code of Practice 2021, patents and the expansion of bush food industry help but this law lag still allows traditional resources to be exploited.
We need to:
Allow Traditional Owners to participate in sustainable trade.
Remove the need for licenses where producers are the Custodians of the resource.
Ensure that all states and territories follow the same law.
Until such time, Aboriginal communities cannot fully protect their knowledge and build sound economic futures.
Mary Kay Cosmetics and the Kakadu Plum - Case Study
Terminalia ferdinandiana - the Kakadu Plum - grows in the savannah woodlands of the Northern Territory and Western Australia. For countless generations, Aboriginal communities have used the fruit, leaves, and bark to treat colds, headaches, sores, and insect bites; they also brew the leaves as a restorative tea (Warndu, 2021; Kakadu Plum Co. N.D.). With the world’s highest natural concentration of vitamin C, the plum has more recently been adapted into modern bush‑food recipes and investigated for its antioxidant and anti‑inflammatory potential (Mandl 2019). The Kakadu Plum is therefore highly sought after by cosmetic and pharmaceutical companies.
Mary Kay Logo, (N.D)
The Mary Kay patent attempt
In 2007, the US cosmetics giant Mary Kay filed a patent application for the plum as a skin‑care formulation. It was found that "the combination of Kakadu Plum extract and acai berry extract produce synergistic … effects that are beneficial to skin" (Murdoch & Powell, 2010). This highlights that Mary Kay was able to test the nutrients of the plum previously and has combined it with acai berries making it an allowable patent due to it being a ‘new invention’.
Kakadu Plum, (2020)
Allegedly Aboriginal communities were not consulted, even though the company’s research depended on Traditional Knowledge of the plum’s properties. The application ultimately failed on technical grounds, yet it exposed a loophole. By sourcing the plum through a non‑Indigenous entity, Mary Kay avoided Australia’s access‑and‑benefit‑sharing requirement under the Convention on Biological Diversity and the Nagoya Protocol. As New South Wales permits the trade of native plants under looser controls than Queensland, the fruit could be exported without triggering Queensland’s stronger access and benefit-sharing rules thus highlighting the issue with different states having different trade laws allowing companies, such as Mary Kay, to work with states with weaker rules (Robison 2025). The US have not signed the CBD nor the Nagoya Protocol, therefore this move was not unlawful under their patent laws, and they did not need to prove they had permission from Aboriginal communities.
Community response to the Mary Kay patent
Mary Kay’s application immediately demonstrated the clash between commercial needs and cultural use. Mary Kay’s Director of Communications, Crayton Webb, defended the allegation of lack of consultation by stating that Mary Kay had “followed the process in place” (Murdoch & Powell 2010). They also agreed that they “used a local supplier, who has sourced and harvested the Kakadu plum with a licence, under government regulations” (Murdoch & Powell 2010). However, he refused to name the supplier highlighting the ineffectiveness of international treaties.
The Gundjeihmi Aboriginal Corporation in the Northern Territory, representing the Mirarr Peoples, stated that no consultation had taken place and warned that an exclusive patent could jeopardise cultural use of the plum as well as loss of potential royalties and recognition if sourced through non-Indigenous suppliers. "The Kakadu plum has been an important source of food and medicine for the Mirarr” (Murdoch, Powell, 2010). The plum ‘also features in oral histories and “Dreaming” stories’ (Murdoch, Powell, 2010). The Plum serves many different functions to each community, for the Yirrkala Peoples of East Arnhem Region, Northern Territory the plum was given as a reward for active stewardship. For Diana Quall from Larrakia Nations she describes the plums to be “branches [that are] part of our family" (SBS The Feed, 2016). The Kakadu Plum is intertwined with each community’s individual practice, the Mary Kay patent risks to diminish the broader cultural significance.
Gundjeihmi Aboriginal Corporation Logo (N.D)
Economic opportunities
The Kakadu Plum industry is an opportunity for Aboriginal Peoples to improve their socio -economic status by harvesting the plum. However, starting a business is a major investment and the risk for Aboriginal Peoples to sell on the open market, especially when they earn less to their non-Indigenous counterparts, is uncertain. This is evident with the median gross weekly household income being $825 for First Nations adults and $1,141 for non-Indigenous adults (Aboriginal and Torres Strait Islander Health Performance Framework, N.D).
Wadeye, the Palngun Wurnangat Association, was able to create 200 jobs for 3-4 months each year, for Aboriginal Peoples in harvesting the Kakadu Plum. This produced $110,000, which was in addition to the community’s income (Brann & Kerrigan, 2015). The Kakadu Plum industry will be a positive employment pathway, as it is an area where Aboriginal Peoples skills and knowledge are highly important. However, there is hesitancy for many Aboriginal Peoples as they are taxed if they make above $18,000 per annum in farming the plum, disrupting their Centrelink allowance. Peter Botsman, a public writer, believes Aboriginal Peoples who are harvesters should earn an additional income from their traditional activities which is to be tax free without any penalties from Centrelink to move towards being independent and having a happier way of living (Botsman, 2018). Through this it can improve community self-sufficiency which can lead to greater self-determination.
Market use
Kakadu Plum extract now appears in dozens of mainstream products: Sundae’s Juicy Pear Body Wash, Jurlique’s Purely White Serum, Sukin’s Radiance Cleanser and many more. Company websites typically state “Made in Australia” claims but rarely disclose whether the fruit was ethically sourced or whether benefit‑sharing agreements exist - again highlighting the lack of transparency under Australian law for Aboriginal Peoples knowledge and traditional resources.
Sundae Juicy Pear Foaming Body Wash (2025)
MCoBeauty Salicylic Foaming Face Cleanser (2025)
Sukin Radiance Gel Cleanser (2025)
Some enterprises demonstrate a better model. The Kakadu Plum Co. (non‑Indigenous‑owned) partners directly with Traditional Owners to guarantee fair payment. The Northern Australian Aboriginal Kakadu Plum Alliance (NAAKPA) is an Aboriginal enterprise that ethically harvests and processes the Kakadu Plum across the Northern Territory (NAAKPA, N.D). The alliance has created a project called “Indigenous certification” which aims to establish a certified mark for Kakadu Plum producers to ensure that consumers are aware were the plum is sourced (NAAKPA, N.D). This will help verify whether supply chains are sourcing the plum ethically and are undertaking the proper protocols needed, aligning with Australian domestic laws and international obligations.
Kakadu Plum Co Jilungin Bush Tea (2025)
Conclusion
The Mary Kay patent of the Kakadu Plum has raised significant red flags amongst local Aboriginal communities, who have used the plum for over 45,000 years. It is crucial to ensure ongoing protection for this plant, as it continues to be harvested and used by communities throughout the Northern Territory. The need for clearer rules around benefit-sharing, a fairer tax system for harvesters, and certification led by Aboriginal communities is paramount as it would lead to long term employment and income thus supporting self-determination and strengthen community independence.