Native Title Report 2008 - Appendix 8

Native Title Report 2008

PO Box 3971, Alice Springs, NT 0871, Australia Phone: 08 8959
6000 Fax: 08 8959 6048 www.desertknowledgecrc.com.au

Desert Knowledge CRC Protocol for Aboriginal Knowledge and
Intellectual Property

Attachment A: Definitions

Attachment B: Reference sources mentioned in
the text

1 PREAMBLE

The DKCRC is dedicated to improving conditions for all desert Australians and
it recognises that there have been past instances of Aboriginal people’s
knowledge and intellectual property being misappropriated and exploited. The
DKCRC Board also recognises that the DKCRC’s objectives will only be
achieved by working in equitable partnership with Aboriginal people. Such
partnerships include knowledge sharing in research and potentially the creation
of new intellectual property. The DKCRC acknowledges that Aboriginal communities
and groups have their own protocols and that these must be observed, understood,
respected and engaged with as an essential, ongoing part of the research
process. The philosophy of working together in partnership is important to
Aboriginal people and is reflected in the commitments of the Board structure in
the Centre Agreement’s Clause 9 (web site link shown in Attachment B) and
enacted through shared Board and committee memberships.

It is a requirement of the DKCRC Centre Agreement that all participants be
aware of this Protocol as a working document. It should be used together with
other DKCRC resources:

Guides for researchers:

Aboriginal Research Engagement
Protocol
Free Prior Informed Consent procedures
Schedule
of rates of pay for Aboriginal workers in research
Good manners
guide to working with Aboriginal people in research
Guide to
Intellectual Property in the DKCRC
DKCRC Guide to Agreements
DKCRC Centre Agreement

Guides for Aboriginal communities and organisations:

Community guide to this Protocol (forthcoming)
Plain language
briefing papers on Intellectual Property laws

Internal research management tools:

IP register
Ethics register
Audit and Risk management sub-committee
of the Board
Commercialisation and Utilisation Plan

2 PURPOSE

This Protocol is a resource to guide researchers toward best practice in
ethics, confidentiality, equitable benefit sharing and in managing research
information. It sets out the ways in which DKCRC research with Aboriginal people
should be conducted and how Aboriginal knowledge and intellectual property will
be managed throughout the research process.

The DKCRC recognises that
working in a cross-cultural context is complex. In particular, where research
projects involve Aboriginal knowledge and intellectual property, special
attention is needed to ensure that these are handled appropriately.

This
protocol also needs to be read in conjunction with the Guide to Intellectual
Property in the DKCRC, as this outlines the ways in which Centre IP and
Commercial Project IP are managed (see Attachment B for the URL).

3 DEFINITIONS

For definitions of terms used in this Protocol refer to
Attachment A, Definitions of Terms

4 GUIDING PRINCIPLES

This Protocol will be developed to ensure its
consistency with best practice in existing and emerging standards, including
internationally and within Australia. It will have reference to such
international standards as the UN Declaration on the Rights of Indigenous
Peoples, the International Society of Ethnobiology Code of Ethics, and the Bonn
Guidelines on Access to Genetic Resources and Benefit Sharing.

4.1 Ethics

Researchers must respect local Aboriginal ethical protocols.

All projects in which Aboriginal people participate, and that involve
Aboriginal knowledge, Aboriginal intellectual property, and other intellectual
property, will only be carried out if they have received ethical clearance from
the relevant committees (such as university ethics committees). They should also
meet appropriate ethical standards, consistent with those such as the Australian
Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Guidelines for Ethical Research in Indigenous Studies (2000), the National Statement on Ethical Conduct in Human Research (2007), and any
others developed, and subsequently adopted by the DKCRC Board. [Centre Agreement
Clause 24]

4.2 Confidentiality

Where requested by Aboriginal knowledge holders
and/or owners, researchers, including students, will observe confidentiality of
this knowledge and/or of Aboriginal intellectual property. This is an
over-riding requirement to all other clauses in this Protocol and is supported
by the Centre Agreement [Clauses 32, 35]. All researchers must be made aware of
and accept this requirement before engaging in any activity in the DKCRC. Any
breach of confidentiality will be handled by the appropriate DKCRC mechanisms
and processes.

4.3 Free Prior Informed Consent

All projects that involve Aboriginal
people, and Aboriginal knowledge and practices, must ensure that free prior
informed consent processes have been carried through. This means that:

Aboriginal participants in the project have been fully informed about
the project, and have a clear understanding of the purpose, methodology, and
intended outcomes of the research, including potential risks, uses and possible
commercialisation options
Adequate opportunities and timeframes have
been provided for Aboriginal participants to make their own decisions about the
research and whether they will participate. This may be either as individuals or
through their communities and organisations
Consent is an ongoing
engagement between the community and the researcher. Subject to local
circumstances, it can be suspended or withdrawn.

4.4 Benefit-sharing

Research must produce direct benefits to Aboriginal
people and reinforce Aboriginal peoples’ self-determination through their
full and ongoing active participation and negotiation in the decision-making
process for research planning and implementation according to local priorities.
Benefit sharing is an ongoing process of negotiation and must be embedded in the
processes of free prior informed consent.

5 PRACTICES

5.1 Survey, scoping and collection

Any Aboriginal knowledge and/or other
types of information collected or disclosed to researchers in the course of a
research project will not be published or commercialised or used in any other
way without:

Ensuring the free prior informed consent of Aboriginal
participants
Ensuring that this knowledge and information is
surveyed, documented and recorded and/or collected in accordance with the wishes
of, and full participation of the relevant Aboriginal persons, communities and
organisations
In the case of publications, ensuring the Board, as
delegated to the Executive Management Team, has provided prior written approval
for the proposed publication
In the case of commercialisation,
ensuring the Board has provided prior written approval for the proposed
commercialisation activities.

5.2 Storage, access, and publication

Data relating to Aboriginal
intellectual knowledge and practices, Aboriginal intellectual property, and
personal and other information relating to Aboriginal individuals, and
communities and/or organisations provided to, and/or collected or created by
researchers in the course of projects:

Will be held in accordance
with relevant legal, ethical, and Aboriginal community and cultural guidelines,
including the Information Privacy Principles contained in the Privacy Act 1988
(Cth) (see Attachment B)
Will recognise local keeping places and
knowledge centres. Subject to negotiation and consultation, research products
will be deposited with communities, and stored and retrieved in accordance with
community protocols
Will be stored and/or archived in appropriate
and sensitive ways, in consultation with, and with the free prior informed
consent of relevant Aboriginal people
If stored and/or archived,
must be appropriately and clearly documented, indexed and catalogued, in
consultation with the relevant Aboriginal people
Once stored and/or
archived, must be accessible upon request by Aboriginal people with interests
and rights in the data
Subject to legal or ethical requirements,
must be destroyed on the request of the providers of the information or on the
request of those who according to traditional law have the authority to make
that decision or when specifically required to do so by the Board or by a
properly constituted Ethics Committee
Will not be published in any
form that allows for identification of the Aboriginal persons or communities
involved without the specific written approval of the Aboriginal persons or
communities involved
Will not be used for any purpose other than for
which it was collected without the free prior informed consent of the Aboriginal
persons who originally provided the information or of those persons authorised
by the relevant communities to make that decision
Will not be used
or published in a manner that is likely to adversely affect the interests of the
particular research participants, particular Aboriginal communities or of
Aboriginal people generally
May be published in a form that does not
allow for identification of the Aboriginal persons or communities involved if
the initial informed consent obtained from such persons or communities permitted
such publication
Efforts will be made to co-author publications with
Aboriginal participants and other researchers who are authors, and/or who have
contributed in other ways to the project.

5.3 Return and feedback

Researchers should ensure that there is
appropriate and relevant feedback of, plans, knowledge and research products,
including all intellectual property to all Aboriginal people with interests in
the project. In returning and depositing final products of research to
communities, researchers will recognise local keeping places and knowledge
centres, and store and retrieve materials in accordance with community
protocols. Feedback and return of results and project information will be
provided to all Aboriginal participants in ways that are relevant, accessible
and meaningful.

5.4 Use, including commercialisation

The Board will ensure that no
commercialisation takes place until they have ensured that the Aboriginal people
and communities who have rights and interests in such material have had
opportunities to decide whether to provide their free prior informed consent to
such commercialisation. Implicit within this Board approval is that appropriate
ethical, confidentiality and free prior informed consent procedures have been
followed, as outlined at 4.1, 4.2, 4.3 and 4.4.

6 EQUITABLE BENEFIT-SHARING

Aboriginal people have a right to expect that
research conducted on their lands and in their communities will be of benefit to
them. See the Aboriginal Research Engagement Protocol for an outline for
negotiating equitable benefit sharing, as this also may extend to non-monetary
benefits. The precise terms of benefit-sharing will be determined by
negotiation, in accordance with the principles of free prior informed consent by
all participants on mutually agreed terms initially and as the research
develops.

6.1 Benefit-sharing and commercialisation

The DKCRC acknowledges the
complexities and the ethical concerns with regard to evaluating Aboriginal
knowledge and practices, and Aboriginal intellectual property, especially in the
engagement process with Aboriginal and other researchers. Benefit sharing with
Aboriginal people based on their knowledge contribution to projects that have
the potential to yield revenue streams will be negotiated on a
project-by-project basis with the starting arrangement being equitable sharing
of net benefits for both DKCRC and Aboriginal parties. Revenue from any
commercialisation by the DKCRC that becomes the Company’s Participating
Share (after other equity partners of the DKCRC have been paid their share) will
be allocated into a separate account (currently managed through Ninti One Ltd),
which will be used to fund research of a priority to Desert Aboriginal interests
within the general aims of the DKCRC. [Centre Agreement Clause 28.5]

6.2
Aboriginal Trustees

When commercial revenue funds have accumulated from the
Company’s Participating Share payments, the Aboriginal members of the
Board will establish an Aboriginal Trustees group to manage and distribute these
funds. The Board will establish, or cause to be established, a charter of
operation of the Trustees group. The Aboriginal Trustees group, in consultation
with the Board, will determine the research priorities for which the funds will
be used.

7 MONITORING, REPORTING AND IMPLEMENTATION

It is a requirement that
effective measures are taken to ensure this Protocol is properly implemented in
all research projects. Ongoing monitoring and reporting will be conducted
throughout the duration of the project through milestone and annual review
reports. The DKCRC will ensure that any breach in ethics and confidentiality is
handled appropriately using relevant processes.

8 BREACHES OF THE PROTOCOL

The DKCRC will ensure that any breach in
ethics and confidentiality is handled appropriately using fair and equitable
processes, currently through referral to the management of the DKCRC.

Potential penalties and sanctions are:

Withdrawal of research
funding
Written censure with consequent damage to credibility of
researchers
Suspension of contracts or permission to conduct
research
Withdrawal of communities and families from the research.

Breaches of ethics and confidentiality will be referred to the Board for
appropriate action.

9 CONTINUAL IMPROVEMENT

With the full participation of Aboriginal people
involved in research projects, research within the DKCRC will be informed by
ongoing developments in ethical standards for defining and handling Aboriginal
knowledge and IP. A continual improvement process in research projects will
ensure ongoing ways to integrate formal scientific methods with local Aboriginal
knowledge/s. The DKCRC will examine new relevant models that are consistent with
international standards, such as articulated in the United Nations Convention on
Biological Diversity (see Attachment B). The Board may update this Protocol to
reflect these improvements.

ATTACHMENT A – DEFINITIONS OF TERMS USED
IN THIS PROTOCOL

Aboriginal Knowledge

Refers to the totality of
cultural heritage of Aboriginal people, as this is defined by Aboriginal people.
This is an inclusive and dynamic body of practices and traditions, encompassing
both tangible and intangible elements. It allows for a diversity of situations,
uses and meanings. It is based on collective rights and interests, is passed on
through generations, and is closely linked to land and identity.

Background Intellectual Property

This is the intellectual
property that all participants bring to a project at the start. The actual
nature of this IP will be described in schedules to a Project Agreement. In
general, background IP refers to notes, documents, reports and other materials
relating to a project that are in existence prior to the commencement of a
project. In practical terms, background IP may be said to include Aboriginal
knowledge as defined above, as this is the property of Aboriginal people that is
in existence prior to the commencement of a project.

Intellectual
Property

Refers to products, works and inventive processes that result
from DKCRC research projects, that are subject to, or potentially subject to
protection under conventional intellectual property rights laws. These laws
include the Copyright Act (1968), Patents Act (1990), Plant Breeders Rights Act
(1994), Trade Marks Act (1995) and the Designs Act (2003).

Confidentiality

Refers to the privacy of the individual with whom
the researcher is working. Any information imparted by an individual will be
kept between the researcher and that individual, unless it is clear that it is
public and open information. The participant in a research project should be
told at the start of the project that the researcher will protect their privacy
and confidentiality.

Ethics

The key principles that guide ethics
are respect, equality, responsibility, research merit and integrity, justice,
reciprocity, free prior informed consent and collaboration. The two important
documents that researchers working with Aboriginal people in Australia follow
are the National Statement on Ethical Conduct in Human Research (2007),
and the Guidelines for Ethical Research in Indigenous Studies by the
Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS,
2000).

Free Prior Informed Consent

Refers to the process of
providing full and relevant information to Aboriginal people about the risks and
benefits of research projects prior to the commencement of the project, in order
to allow Aboriginal people to make informed decisions whether or not to consent
to the project. This consent can be withdrawn at any time without penalty.

Centre Agreement

The contractual agreement that establishes the
Unincorporated Joint Venture (UJV) of DKCRC, as well as empowering the formation
of a company (Ninti One Limited) to hold the Intellectual Property produced by
the Centre’s activities and to provide administrative services to the
Centre. The Centre Agreement is signed by all the Partners and such other
partners as wished to be part of it (‘Supporting Partners’).

Commonwealth Agreement

This contractual agreement commits the
Core Partners to deliver DKCRC’s obligations in return for Commonwealth
funding and is signed by the Core Partners and the Australian Government.

Company’s Participating Share

The Centre Agreement sets out
that the Company (DKCRC) receives commercialisation revenue as determined in
accordance with clauses 33.6 and 33.7. These clauses state that the
Company’s share of revenue is calculated in proportion to the total value
of Centre resources (other than Participant contributions) divided by the total
value of Centre and Participants’ contributions.

ATTACHMENT B –
WEB SITE LINKS REFERRED TO IN TEXT

Aboriginal Research Engagement
Protocol

http://www.desertknowledgecrc.com.au/socialscience/socialscience.html

Prior Informed Consent Form

http://www.desertknowledgecrc.com.au/socialscience/socialscience.html

Schedule of rates for Aboriginal workers in research

http://www.desertknowledgecrc.com.au/socialscience/socialscience.html

DKCRC Good Manners Guide to working with Aboriginal people in research

http://www.desertknowledgecrc.com.au/socialscience/socialscience.html

DKCRC Centre Agreement:

http://www.desertknowledgecrc.com.au/aboutus/crcprogramme.html

Guide to Intellectual Property in the DKCRC:

http://www.desertknowledgecrc.com.au/partners/

DKCRC Guide to Agreements:

http://www.desertknowledgecrc.com.au/partners/

UN Declaration on the Rights of Indigenous Peoples:

http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement

UN Convention on Biological Diversity:

http://www.cbd.int/convention/convention.shtml

Bonn Guidelines on Access to Genetic Resources and Benefit Sharing:

http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf

Privacy Act 1988:

http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/6C64656791B702DBCA25725C00825E2A?OpenDocument

Plain English reference material for Aboriginal communities and groups (IP
laws, etc): http://www.desertknowledgecrc.com.au/socialscience/managingaboriginalknowledge.html

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Native Title Report 2008 - Appendix 8