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By Anika Valenti, Senior Associate, and Dr. Terri Janke, Solicitor Director.
7 January 2025
There is rapid growth in the number of First Nations businesses being established and creating bush products such as bushfoods, soaps, creams, balms, oils, teas, tonics, beverages and other remedies.
Bush products provide an opportunity for First Nations peoples to develop businesses and continue land management practices on Country, and importantly to preserve and share knowledge with future generations and non-Indigenous people, and keep culture strong.
We are often asked by clients how to protect the intellectual property (IP) connected to these products, as well as the associated cultural knowledge and practices (ICIP) that are incorporated, whilst ensuring legal and regulatory compliance.
Here are some of the key elements to think about in relation to your bush products:
Overview of Legal and Regulatory Framework:
Registration of Trade Marks - Branding is an important asset to your business; developing logos, business and product names, marketing material and packaging is part of developing an authentic and unique brand that distinguishes your products and services from others on the market.
Protecting your Recipes, Methods and Techniques - Your recipes, methods of manufacture and techniques for developing your products can be protected as trade secrets under the law of confidentiality, as long as you keep this information and knowledge secret.
Licences and Permits - If you are wild harvesting or selling flora or fauna, you generally require a permit or licence depending on where you are harvesting from (public, private, native title land or Indigenous Protected Area) and the purpose of collection (commercial or non-commercial use, or research and development).
Cosmetics and Medicines - The claims you make about your bush products will determine which laws and regulations apply. If you are selling cosmetic bush products, such as soaps, lotions, balms, oils, and other skincare items containing bush plant extracts, the Australian Industrial Chemicals Introduction Scheme (AICIS) will regulate the ingredients used in your products. If you are marketing your bush products as traditional bush medicines, you must comply with the Therapeutic Goods Regulations, overseen by the Therapeutic Goods Administration (TGA).
Food Standards Australia and New Zealand - When it comes to bushfoods, you must comply with food regulation laws enforced by Food Standards Australia and New Zealand (FSANZ). Additionally, bushfood businesses must adhere to various State and Territory regulations and permit and licensing requirements, often administered by Local Councils, so check these obligations if you want to open a commercial kitchen or sell food to the public.
Labelling and Consumer Protection - The ACCC regulates product labelling requirements, consumer guarantees and misleading or deceptive conduct and representations in trade or commerce. The TGA also have labelling requirements for medicines, including traditional medicines. Depending on what your product is, there will be different regulations to comply with when promoting your product, the claims that can be made regarding healing and other properties, and how effective your products are.
Protocols - When bush products incorporate cultural knowledge, practices, stories, language, art, or expressions, they must adhere not only to Western legal and regulatory requirements but also to cultural protocols. They should also consider access and benefit sharing and free, prior and informed consent obligations as defined by Traditional Owners and knowledge holders, who have rights and responsibilities over their knowledge systems such as plant uses, stories and cultural practices.
Adherence to international frameworks, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Convention on Biological Diversity, the Nagoya Protocol on Access and Benefit Sharing ensures that Indigenous rights are respected. These frameworks aim to protect Indigenous knowledge systems and ensure equitable benefits from their use in innovation and commerce. You should also consider the True Tracks® protocols framework developed by Dr Terri Janke as an engagement approach which respectfully considered ICIP. The best practice approach is to recognise ICIP rights and negotiate rights when conducting research, going on Country and taking samples, and commercialising ICIP.
R&D and Biodiscovery – If you want to engage in research & development, biodiscovery or testing of the native genetic resources in your products, ensure you obtain appropriate permits and use agreements to protect ICIP and Indigenous data, govern the sharing, use and disposal of genetic material (e.g. plant leaves, seeds or fruit) and ownership of IP material that is developed as a result of the testing and research.
Export laws – If you are planning to export your products overseas, you will need advice on whether special permits are needed, or to change the way the product is promoted depending on the laws in the proposed market countries.
This is a general overview of some of the main laws that may be applicable to your bush products business, but there may be others. What you will need to consider depends on your specific circumstances and it is best to seek legal advice to ensure you comply with the relevant laws and regulations.
TJC is best placed to assist Indigenous bush products businesses with drafting agreements and contracts, protocols, protecting IP and ICIP, and providing specialised advice. You can ask us for legal advice in relation to your unique products by contacting our office on (02) 9693 2577 or emailing us tjc@terrijanke.com.au.
For more information, see the following guides authored by Senior Associate Anika Valenti:
