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A snapshot of Access and Benefit Sharing Agreements
Written agreements are standard operation for solicitors at Terri Janke and Company (TJC). When written correctly, these agreements can ensure ethical behaviour. Access and Benefit Sharing agreements (ABS agreements) are one example and are usually created by those wanting to access Indigenous owned resources and knowledge.
How does it work?
The access and benefit sharing framework is based on established international principles of the United Nations Convention on Biological Diversity. Under Australia’s federal government, there are different laws that apply to different lands and different purposes so navigating it can be confusing. The main piece of law is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) that requires an ABS agreement if someone wants to access resources on Commonwealth land for commercial or potentially commercial purposes.
The tricky thing is when the Indigenous resources being accessed aren’t on Commonwealth lands (for example, lands that are State-owned, or non-Commonwealth lands that are subject to Native Title or Aboriginal Land rights). There are existing laws in some States and Territories such as QLD, TAS and NT which offer different levels of protection and ABS requirements. There is also prospective biodiscovery legislation in WA.
However, there are currently no streamlined State and Territory biodiscovery laws that offer the same protections as the EPBC Act. Currently in NSW, VIC, SA and the ACT, while there are certain permit requirements to access land, there are no requirements under the law for an ABS agreement to be entered into where resources being accessed are on non-Commonwealth lands.
What does this mean for Indigenous communities?
This creates some uncertainty in relation to Australia’s laws and regulations, particularly where Indigenous-owned land, biological resources, traditional knowledge, know-how, intellectual property is being accessed in non-Commonwealth areas. It leaves Indigenous communities and their native resources potentially at risk to unregulated bioprospecting and exploitation without the proper permissions, engagement or benefits flowing back to the Indigenous community or people providing the access and use of biological resources.
Conclusion
ABS agreements are an important way of protecting Indigenous knowledge and resources. There should be ABS agreements in place when accessing Indigenous biological resources, or have best practice ABS frameworks and protocols in place in instances where one isn’t required by law.
We can assist with drafting the right documentation to make sure that Indigenous individuals and communities who sharing the resources aren’t just affected, but empowered and benefiting, when sharing knowledge and resources with the wider community.