International Biopiracy
Despite Australia having Indigenous Culture and Intellectual Property (ICIP) rights, they are technically not legal under Australian law, meaning, the government does not protect or recognise these rights.
This creates an avenue for companies to use Aboriginal communities’ resources without being fined. However, on an international scale, there has been multiple treaties established to protect Indigenous cultures thus highlighting biopiracy as a global matter.
Organisations
Convention on Biological Diversity 1992
The Convention on Biological Diversity (CBD) 1992 is a binding legal international agreement, which Australia is a signatory to. It aims for “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of benefits arising out of the utilisation of genetic resources” (United Nations, N.D.) In Article 5, paragraph 5 it requires that where Traditional Knowledge is used, benefits must flow back to the source community on fair and equitable terms. Yet the CBD carries no real enforcement mechanism and implementation is left to national governments, which can vary widely in their capacity and willingness to implement the provisions effectively thus leading to inconsistencies. Despite Australia signing this treaty, domestic breaches still occur such as the attempted commercialisation of the Kakadu Plum by Mary Kay Cosmetics for her product range without meaningful consultation with Traditional Owners.
Convention on Biological Diversity (1992)
Nagoya Protocol ‘Life in Harmony’, (2010)
Nagoya Protocol 2010
The Nagoya Protocol 2010 is a supplementary agreement to the Convention on Biological Diversity (CBD) 1992. It focuses on “Access and Benefit‑Sharing” of genetic resources:
Article 5 - all benefits, monetary or otherwise, must be shared on mutually agreed terms with the Indigenous custodians of the resource (Convention of Biological Diversity, 2011).
Article 6 - Prior Informed Consent from those custodians is mandatory before access to traditional resources.
States are encouraged to support community protocols to ensure the protection, continuation and acknowledgement of customary laws, however this should be implemented in domestic laws. Despite the Nagoya Protocol outlining agreements and permission with the communities, it does not cover patents. It does not regulate how patents are examined or challenged, leaving innovators free to secure exclusive rights even when Prior Informed Consent or Access and Benefit Sharing has been ignored (Bajaj 2024). Australia has not signed the Nagoya Protocol; however some states have adopted its principles in particular the Queensland Biodiscovery Act 2004, amended in 2020, requires benefit‑sharing agreements with Traditional Owners before any Queensland native biological material can be commercialised.
United Nations Declaration on the Rights of Indigenous Peoples 2007
The United Nations Declaration on the Rights of Indigenous Peoples 2007 highlights the importance of the cultural and practical significance of plants and animals for Indigenous communities worldwide.
Article 24 declares Indigenous peoples’ right to “traditional medicines and to maintain their health practices” (United Nations, 2007). This includes access to the plants and animals required for those practices. Domestic law, however, often requires licences for the commercial sale of genetic material. In Australia this means that, while an Aboriginal community may gather a plant for ceremonial use, they must obtain the same permit as any non-Indigenous to sell that plant undermining cultural authority over Country.
Article 31 further recognises the right of Indigenous peoples to “maintain, control, protect and develop their cultural heritage, Traditional Knowledge and traditional cultural expression … and their intellectual property over this knowledge and expression’ (United Nations, 2007). Yet Australia, despite supporting this declaration, has not fully legislated for Aboriginal Peoples to have control or participate in decisions that affect their traditional knowledge, highlighting the lack of compliance as Australia is a signatory of the United Nations Declaration on the Rights of Indigenous Peoples (2007).
United Nations Declaration on the Rights of Indigenous Peoples (2007)
Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge 2024
In 2024, after 24 years of negotiation, saw the introduction of a new global treaty called the “Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge” which aims to combat the biopiracy of Traditional Knowledge. Its primary role is to ensure any patent application, that relies on Indigenous genetic resources or knowledge, must identify their source and, where applicable, provide evidence of prior informed consent and benefit‑sharing (Phaahealth 2024). Failure to disclose, or fraudulent disclosure, can trigger fines or invalidate the patent. The treaty is not retrospective meaning existing patents remain untouched, and some patents can last for up to 25 years. The treaty requires states to establish systems such as databases about the genetic resources and Traditional Knowledge which can be made available to patent offices to use when granting patents, however there is the issue of who should control and own the systems, “Due to this it disregards that Aboriginal Peoples should retain sovereignty over their data” (Phaahealth, 2024). Due to the infancy of this treaty it remains to be seen if it will deter biopiracy.
WIPO Logo (2024)
Therefore, the Convention on Biological Diversity, Nagoya Protocol, United Nations Declaration on the Rights of Indigenous People and Treaty on Intellectual Property Genetic Resources and Associated Traditional Knowledge all recognise biopiracy and support benefit‑sharing.
However, there is a lack of solid legal framework in Australia in respects to ‘prior and informed consent’ for the use of Traditional Knowledge and plants associated with it. Until such legislation is passed and enforced, legal protection for Aboriginal Peoplesbush‑medicine knowledge will remain incomplete.
Hoodia Cactus - Case Study
San Peoples population in 2017
The Hoodia Cactus illustrates how weak treaty enforcement enables biopiracy on a global scale. The Hoodia stem has historically been chewed/sucked by the San Peoples, who inhabit Southern Africa, to suppress hunger during long desert hunts.
Hoodia Cactus (2020)
Phytopharm logo (2025)
South Africa’s Council for Scientific and Industrial Research, (N.D).
South Africa’s Council for Scientific and Industrial Research (CSIR) isolated the active compound of the stem and patented P57, which is an appetite-curbing compound, without consulting the San Peoples. CSIR then licensed the patent to the British firm Phytopharm, which in turn struck a US $21 million development deal with Pfizer to produce an anti‑obesity drug.
The company discovered that P57 could provide a potential cure for obesity with no side effects such as vomiting, acid reflux and indigestion (Public eye, 2001)
Throughout those negotiations the San Peoples were neither approached for prior informed consent nor offered any share of anticipated profits, violating the benefit‑sharing principles of the Convention of Biological Diversity.
The San Peoples, being one of the poorest and marginalised in the world, formed a Working Group of Indigenous Minorities in Southern Africa (WIMSA) to protect their rights and interests.
“We were just objects for exploitation”
Due to this violation, the San Peoples no longer allow media or researchers free access and there must be contracts for payment in return for access to their Traditional Knowledge. The money gained from this relationship is invested in education and community development.
“The bushmen do not object to anybody using their knowledge to produce a medicine, but they would have liked the drug companies to have spoken to them first and come to an agreement”
A San women holding a child, (N.D)
It is through this case that the actions undertaken by CSIR and Phytopharm were in breach of the Convention Biological Diversity, which both parties are signatories to, as there was no ‘equitable sharing benefits arising from the utilisation of genetic resource’ (Public eye, 2001). In 2003, the San Peoples received a benefit sharing agreement where 6% of royalties received from CSIR and Phytopharma were put into a trust “to raise the standard of living and well-being of San Peoples of Southern Africa” (Wynberg, ND). However, only USD$100,000 has been received by the San Hoodia Trust despite the drug becoming a billion dollar product.
San children in Namibia (N.D)