This paper was released as part of the second phase of consultation for the development of the WA Biodiscovery Bill. It outlines key concepts for the development of the Bill including:
- Activities considered as biodiscovery for the purposes of the Bill.
- A proposed model for how the Bill could operate once it becomes law.
- Draft definitions for key terms including ‘Traditional Knowledge’, ‘Aboriginal tradition’ and ‘Traditional Knowledge Custodians’.
- A proposed mechanism to help biodiscovery proponents identify Traditional Knowledge Custodians where consent is required to use traditional knowledge, and for benefit sharing.
- A proposed way for managing the use of Traditional Knowledge in the public domain.
The feedback received has been summarised in the Phase 2 consultation findings report.
Please note that since the consultation paper was published, a decision was made to repeal the Aboriginal Cultural Heritage Act 2021. As a result, Local Aboriginal Cultural Heritage Services (LACHS) will no longer be reflected in the proposed hierarchy of groups for identifying Traditional Knowledge Custodians. It is intended in subsequent rounds of consultation to discuss this aspect further with stakeholders.
Proposed model for the Bill
Show moreIt is proposed that anyone wanting to access WA native biological resources for the purpose of biodiscovery will need to apply for a Biodiscovery Collection Permit.
Biodiscovery Collection Permits will be used instead of existing access or collection permits, licences or exemptions. This includes permits, licences and exemptions issued by WA Government agencies.
The permit will give permission from the WA Government to access land or waters and take a WA biological resource for biodiscovery, subject to other required permissions. Other permissions may include getting consentfor access from private land holders or Exclusive Possession Native Title Holders.
A Biodiscovery Collection Permit will be needed when:
- Collecting biological resources from WA lands and waters, including private land, Native Title Determined Land and WA Crown Land.
- Accessing samples held in WA Government libraries and specimen collections such as the WA Museum or WA Herbarium.
Draft definitions
Show moreThe Biodiscovery Bill will need to set out definitions for Traditional Knowledge, Aboriginal tradition and Traditional Knowledge Custodian. The following draft definitions were prepared for further testing with stakeholders:
- ‘Traditional Knowledge’ means knowledge about the biological resources that has its source in Aboriginal tradition and includes know-how, skills, innovations and practices relating to the biological resources that have been developed and may continue to evolve in accordance with Aboriginal tradition.
- ‘Aboriginal tradition’ means the living, historical and traditional observances, practices, customs, beliefs, values, knowledge and skills of the Aboriginal people of WA generally, or of a particular group or community of Aboriginal people of the State.
‘Traditional Knowledge Custodian’ means an Aboriginal person who individually or collectively with others in accordance with Aboriginal tradition:
a. holds Traditional Knowledge, and
b. has cultural authority, interests and obligations in respect of the Traditional Knowledge.
Mechanism for identifying Traditional Knowledge Custodians
Show moreIn cases where researchers will seek permission for the use of Traditional Knowledge in biodiscovery, and benefits are to be shared with Aboriginal people, the researchers will need to identify the relevant Traditional Knowledge Custodians. A mechanism to guide proponents on this will need to be specified.
In Phase 1 of consultation, participants suggested existing organisations such as Registered Native Title Body Corporates, Prescribed Body Corporates and regional corporations, bodies and groups, could help proponents identify the right Traditional Knowledge Custodians for consent and benefit sharing. Based on what was said, a hierarchy of organisations that proponents could go to has been developed for further testing. This will be discussed in future rounds of consultation.
Traditional knowledge in the public domain
Show moreSome Traditional Knowledge has already been published or made public in some way and is readily accessible in the public domain. It is proposed that this type of Traditional Knowledge will be included in the Bill.
If the Traditional Knowledge a proponent wants to use is so widely diffused that the Traditional Knowledge Custodian cannot be found, it is proposed that the proponent could acknowledge the Traditional Knowledge in their work. And for commercial biodiscovery, a percentage of any benefits could be directed to the benefit of all Aboriginal people, for example to the conservation of Aboriginal land. This idea will be discussed further in future rounds of consultation.
