Towards a Fairer and More Equitable Bushfoods Industry: access and benefit-sharing and certification frameworks

ABSTRACT

Australia’s bushfoods, botanicals and traditional medicines sector are a growing industry based on thousands of years of Indigenous Knowledge (IK). National and international growth in this industry does not provide satisfactory or equitable sharing of benefits, preventing opportunities and funding for Aboriginal and Torres Strait Islander peoples. Without prior informed consent (PIC) and access and benefit sharing (ABS) arrangements, alongside specific point of difference certification and labelling schemes, current industry inequities will continue. International protocols such as the Nagoya Protocol require ABS arrangements, and we argue whether a certification trademark (CTM) scheme could also support ABS in Australia. ABS lays the groundwork to ethically share IK to mitigate harms and provide benefits to Aboriginal and Torres Strait Islander peoples. Establishing coherent CTM and labelling schemes will complement and could work towards addressing the gaps and limitations in Australian ABS laws. CTM and labelling systems, as well as strategies and statements used by established alliances and organisations, provide insight into what mechanisms current ABS laws allow for. We use these examples to recommend the next steps.

KEYWORDS:

• Access and benefit sharing
• Australian bushfoods and botanicals
• Indigenous knowledge
• Certification and labelling
• ‌Nagoya Protocol‌
• Biotrade

Introduction

Certification may improve fairness and equity for Indigenous peoples and producers to handle the challenges that exist at the intersection of bushfoods, botanicals, and traditional medicines industry in Australia. Robinson and Raven (2017), for example, show that several native and endemic Australian plant and animal species, important to Indigenous cultures, are subject to international ‘biopiracy’, or misappropriation, through the filing and granting of hundreds of patents (Robinson 2010; Stirrup 2016). Misappropriation of Indigenous knowledge (IK) and plants, animals or other genetic and biological resources (GBR) by researchers and companies often occurs without both free prior informed consent (FPIC) and adequate ‘access and benefit-sharing’ (ABS) agreements. FPIC and ABS standards were established by the Convention on Biological Diversity (CBD) in 1992 and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (NP) in 2010, in force 2014. Related to this, there is a need for clearer identification of Indigenous-owned and led products in the bushfoods sector, which is dominated by non-indigenous businesses. Labelling and certification create product differentiation and could assist consumers to identify a ‘genuine’ Indigenous owned product in the market (Sanderson, Wiseman, and Stamboulakis 2018). There is growing intersectionality between ABS approaches, where researchers require benefit-sharing to access GBR and associated knowledge, and ‘fair trade’ approaches in biotrade which extends the profit back to the producer (Jarvis, Maclean, and Woodward 2022). Australian Indigenous entrepreneurship encompasses a need to re-balance inequities that can arguably be achieved through certification. This paper considers how ABS and certification, both international approaches, may operate in the Australian context. It is based on qualitative research by two masters students and interviews conducted with Indigenous producers, lawyers, managers, academics, and government departments associated with utilisation of indigenous knowledge for bush food and medicine products. The co-authors have also collaborated with all of the Indigenous organisations mentioned here over several years.

Methods

The first-hand data in this paper is informed by interviews conducted during similarly designed research work by two master’s students. The qualitative research method of using participant interviews as case studies was informed by discussion within the research team and relevant literature (Crabtree and Miller 1999). A list of varying stakeholders associated with the Australian bush food sector was compiled, some individuals having previously been known to two of the co-authors. Consent documentation and project descriptions were provided through a university ethics approval. A total of 19 individuals were contacted to participate, with 12 individuals agreeing to partake in 11 interviews. Structured interview questions were shaped during discussions by the research team. Group A were asked 13 questions and group B were asked 9 questions. Gaps in the literature, points of interest, and persistent issues and questions, informed the basis of the interview questions. Questions were provided to participants before the interviews and all participants were asked the same questions to limit variability in themes. Meetings were held over zoom where digital and literary data by means of voice recordings, transcripts, and notes, was collected. Using thematic analysis, a discussion structure document was utilised to code the data into several key groups (Gioia, Corley, and Hamilton 2013). All data was deidentified to respect the individuality of those involved. Inductive analysis that draws upon patterns in the data has been used to inform the following sections of this paper. This includes participants’ new observations, contention or agreement with the literature, recommendations, and more. Further, the paper was informed by collaborations with First Nations bushfoods enterprises including involvement in and presentation at the National Sovereign Food & Botanicals Symposium in 2023, which we describe later.

Introducing the Nagoya protocol and ABS in Australia

The 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (NP) is one of the main international frameworks for preventing misappropriation and protecting IK. While the NP establishes the ABS regime, it is founded on the CBD doctrine of States holding ‘sovereign rights’ over biological and genetic resources that is refuted by Indigenous peoples (Harry 2011). It came into force in 2014, but Australia has yet to ratify it (Australian Government n.d.b; n.d.c). The NP aims to clarify engagement processes between providers and users of GBR (by implementing the CBD’s third objective (Convention on Biological Diversity 2010)). The NP establishes the ABS framework and processes, alongside the regime for legally and ethically accessing GBR without causing environmental, social, or economic harm. For the NP to meet its normative provisions, however, it must be effectively implemented in the context of international law (Glowka and Normand 2013) and national law.

How the Nagoya protocol works

The NP established an ABS Clearing House that requires Parties to enact a permit system and Competent National Authorities (CNA) to regulate access to GBR, providing clarity, transparency, timeliness, and fairness among providers and users of GBR and associated traditional knowledge (TK). A CNA provides information on creating fair and equitable ABS agreements based on mutually agreed terms (MAT) (Article 13) and facilitates national processes to ensure PIC is obtained from Indigenous peoples for access to GBR ‘where they have established rights’ and associated TK (Article 6). Access permits are issued only when PIC is obtained and proven as a benefit-sharing agreement/contract (subject to MAT), that regulates the sharing processes between users and providers of GBR. The same authorities that issue permits are also able to issue fines and assist in dispute resolution (Humphries, Benzie, and Morrison 2019).

Implementation of the NP varies by country, and even within countries, which may use existing legal structures to implement its provisions with minor legal amendments. Australia, a federated State, has a CNA for each state and territory. For example, in the Northern Territory (NT) the CNA is the NT Government, which issues access permits, proceeded by an internationally recognised certificate of compliance which is lodged with the ABS Clearing House. It may be challenging for some countries to establish ABS systems and support agreement-making (i.e. formal contracts) for all relevant research and development (R&D) transactions (Movilla Pateiro 2020; Sangeetha, Gangappa, and Bhatta 2020).

Additionally, the NP encourages consideration of community protocols and customary laws to guide ABS agreements (Article 12) (Stoianoff and Roy 2015). Community protocols are unique to each community, being established within respective customary laws to guide behavioural engagement processes (Raven 2006) for potential utilisation in the ABS context.

The Australian legal context of ABS laws

As Robinson and Raven (2017) explain, the legal geographies of ABS are complex and retain large jurisdictional gaps as well as challenges for Indigenous people who may have limited rights over land despite thousands of years of connection to Country. Australia is a federated state which distributes environmental and biodiversity conservation obligations and responsibilities through Federal, state and territory governments and laws. Australia, a Party to the CBD, must implement laws to regulate access to GBR (Australian Government n.d.b). To comply with the CBD, Australia amended its Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and Regulations 2000 (EPBC Regulations) and encouraged states and territories to also regulate access to biodiversity (Australian Government 2005). Under the EPBC Act, users seeking access to GBR in Commonwealth areas must apply for an access permit which is issued by the Minister of the Department of Environment and Heritage (DEH) (Australian Government n.d.d). Users and providers must negotiate ABS agreements that show providers have given PIC for GBR and associated TK, how protection and valuing of IK will be ensured, and the benefits (in either monetary or non-monetary form) provided (Dawkins 2018). If users don’t comply with these requirements, penalties up to AUD 5500 can apply. However, this small penalty might easily outweigh company efforts/costs to access resources ethically (Dawkins 2018). To streamline the process, the Australian government developed a model contract (World Intellectual Property Organisation n.d.).

While Australia is a signatory to the NP, it has not ratified it. Before the NP, in 2002, Australia recognised the need for a Nationally Consistent Approach to review and complement existing state biodiversity conservation laws and regulations, and to guide common actions of governments when reviewing or extending these policy measures (Australian Government 2002). While this process marked good intentions, the government has yet to implement a nationally consistent approach (Australian Government n.d.b).

Outside of the Commonwealth (of which there are very limited continental lands within the scope of the ABS rules), only Queensland and the NT have legislation that loosely complies with the NP. In 2020, Queensland introduced a traditional knowledge code related to its amended Biodiversity Act 2020 making it the only Australian state or territory with an ABS process that is NP compliant (DelaCruz 2021). In 2021, Queensland released the Traditional Knowledge Code of Practice, which aims to assist biodiscovery entities to meet the traditional knowledge obligation under the Biodiscovery Act 2004. A 2022 agreement between James Cook University and the Mbabaram Aboriginal community marks the first successful collaboration between a biodiscovery entity and an Indigenous community under the new ‘Traditional Knowledge Obligation’. The research collaboration investigates native tropical plant species, historically used medicinally within the Mbabaram Aboriginal community, for potential anti-inflammatory properties.

More importantly, while the Commonwealth EPBC Act covers some provisions of the NP (PIC, MAT, a permit system, and the encouragement of ABS) it does not cover them all. Australian legislation, for example, lacks adequate user measures for monitoring and compliance (Australian Government 2005; Robinson and Raven 2017). Lawson (2011) argues that Commonwealth regulations favour using existing patent standards, and do not ensure adequate benefit sharing for Indigenous providers. While Australia has signed the UN Declaration on the Rights of Indigenous Peoples, current biodiversity legislation and policies aim to promote commercial negotiations rather than ensure equitable benefit sharing with Indigenous providers of IK. Australia’s Native Title Act, which does not enable commercialisation, and results in ongoing colonial impacts on Indigenous rights to control land and resources, also impacts Indigenous peoples’ ability to protect and commercialise their resources and knowledge (Chelliah and Joshi 2013; Robinson and Raven 2020). Imbalances with how the NP operates are an ongoing extension of colonial power. State Parties to the NP are described as having ‘sovereign rights’ to biological resources, through the CBD, and Indigenous peoples, communities and companies are forced to negotiate access and ABS agreements on this basis (Dawkins 2018; Robinson and Raven 2017). Indigenous people are forced, through the coercive influence of international and state biodiversity law, to assert their rights to protect their IK through Western legal framings that strip them of their ‘sovereignty’.

Gaps in Australian ABS laws

Australia’s legal geography of biodiversity legislation and regulations is inequitable, and spatial differences across the states and territories enable those seeking GBR to engage in ‘jurisdiction shopping’. It is important to have consistent GBR policies (regulating ABS) between Australia’s states and territories (Robinson and Raven 2017). Australia’s ‘patchwork’ GBR laws makes it possible for users to utilise loopholes to access GBR in jurisdictions with legislative and regulatory gaps. This is possible because many Australian species are distributed across regions subject to different legislation and regulation. For example, the Australian endemic plant Kakadu Plum (Terminalia ferdinandiana) is geographically distributed across Western Australia, Northern Territory and Queensland. Likewise, Eremophila, a genus, grows in every Australia state and territory, except for Tasmania. This increases the species’ (and associated IK) subjectivity to unregulated exploitation.

A disclosure of origin patent requirement could help technically ‘fix’ this problem. A disclosure of origin requirement asks patent applicants to disclose where a resource was accessed, any relevant TK associated with the resource, and show evidence of PIC and benefit sharing agreements. It would serve as an additional checkpoint, increase compliance and transparency, and identify patents claiming novelty over a ‘new’ invention or application based on existing IK (Dawkins 2018). This issue was discussed during the Nagoya negotiations; however, the NP does not include a clause on disclosure of origin. The World Intellectual Property Organization (WIPO), however, has implemented a new Treaty including a disclosure of origin requirement at the international level. Furthermore, amendments to Australia’s Patent Act 1990 (Cth), to include disclosure of origin in patent applications containing GBR would lower the risks of ‘biopiracy’ (Dawkins 2018; Robinson and Raven 2017). IP Australia, recognising the increased need for disclosure requirements in its policies, undertook widespread consultations with IK holders, subsequently publishing the Indigenous Knowledge Consultation Paper in February 2021 which suggested policy improvements (Australian Government 2021; Blackwell et al. 2019).

While ABS regulations and amendments to IP laws seek to address ‘misappropriation’ in research, development and patent claims, Indigenous bushfoods producers are faced with other related challenges. For instance, the Australian bushfoods commercial sector, which is exclusively based on IK use of plants, is heavily dominated by non-indigenous actors (Jarvis, Maclean, and Woodward 2022). While Indigenous-owned and Indigenous-led commercial sales of bushfoods, botanicals, skin care and traditional medicinal products are expanding, these businesses are competing with non-indigenous products that are window-dressed Indigenous-owned or made. This means it is hard for consumers to identify if a product is Indigenous owned, respects ICIP, and/or provides benefits to Indigenous peoples. Parts of the Australian bush food industry, through the influence of the First Nations Bushfood and Botanical Alliance Australia (FNBBAA), Northern Australian Aboriginal Kakadu Plum Alliance (NAAKPA), and Federation of Victorian Traditional Owner Corporations (FVTOC), argue that bushfoods certifications, labelling, or similar, would clarify the provenance and authenticity of Indigenous bush food products.

Potential labelling or certification approaches for Australian bushfoods, botanicals and medicines

Labelling or certification may assist consumers to clearly identifying a ‘genuine’ Indigenous product versus a product from non-Indigenous owned and operated business. Labels, which act as ‘point of difference’ in the market to differentiate products from their competitors, are aimed at consumers (Sanderson, Wiseman, and Stamboulakis 2018). An Indigenous label or certification could indicate that a product using Australian native species has met contractual obligations and requirements related to provenance, ownership, and other criteria as established in the certification rules (Sanderson, Wiseman, and Stamboulakis 2018). Certification processes provide public and consumer assurances by defining the criteria that businesses, companies and products must comply with to display what’s known as a certification label, or certification trademark (CTM). There are relatively few relevant certification marks in Australia for bushfoods, or for ‘Indigenous-owned’ products. There is also currently no recognisable label in the Australian market that indicates a product using Australian native species has met ABS standards. While ‘fair trade’ is registered with IP Australia as a CTM, their current rules exclude local Indigenous producers as entrants into the scheme.

Only 1–2% of the Australian bush food and botanicals activities are undertaken by Indigenous owned and led businesses (Mitchell and Becker 2019). Alongside ABS processes, which act to mitigate misappropriation in R&D activities, Australian certification and labelling of products could indicate commercial provenance (e.g. from a region of Country in the case of geographical indications, or from an Aboriginal-owned farm) and identify Indigenous ownership of the business. Ethical consumers can utilise the labels and certification to support them in purchasing Indigenous-owned bushfood products from Indigenous Country.

Potential positives of labelling and certification

The cyclical relationship between Indigenous people and Country is critical for the creation of IK that underpins the bushfoods and botanicals sector (Awopetu 2020; Frankel and Janke 1998; Maclean et al. 2022; Marinova and Raven 2006; Robinson and Raven 2017). Bushfoods activity gets Indigenous people back onto Country, and produces knowledge, economic, environmental, health, and cultural benefits (Frankel and Janke 1998; Gorman et al. 2020; Grieves 2008; Logue et al. 2018). Balancing promoting the Australian bushfoods, botanicals and medicines industry, and protecting IK restricts Indigenous people’s prosperity in the sector. An IK protection identifier, such as a mark or label, is needed to enable consumers to choose whether they value IK-protected products over those that are not Indigenous (Maclean et al. 2022). These protections would also allow for diminished funnelling of profits to non-indigenous corporations and more evenly distributed benefits to members of the Indigenous communities providing IK (Marinova and Raven 2006). Indigenous-led bushfood sector innovation and activities on-Country will engender a sense of pride in the community, which is needed to break down institutionalised colonialism (Frankel and Janke 1998).

Initiatives that work to alleviate poverty within Indigenous communities are also widely sought across political divides (Maclean et al. 2022; Marinova and Raven 2006). The extent to which benefits from certification schemes will reduce challenges faced by Aboriginal and Torres Strait Islander peoples is hard to determine (Frankel and Janke 1998). Enabling business opportunities modelled around Indigenous cultural structures, presents Aboriginal and Torres Strait Islander communities with opportunities to develop a self-perpetuating economy (Nakata 2002; Robinson and Raven 2017). There is an economic failure for Aboriginal peoples because of restricted access to Country and the poor operationalisation of Native Title, which does not support commercialisation (Maclean et al. 2022). To facilitate development of structures to protect Indigenous produced bushfood products, legal frameworks should aim to support leadership and participation of Traditional Owners (TO) and Indigenous people (Lingard 2016; Lingard and Martin 2016).

We have developed a joint patent [with TOs] around a particular plant. That was the way we saw an approach through which we could publish the research but protect the knowledge and give the opportunity to traditional custodians to develop commercial products. (Participant 8, Interview with author, November 24, 2021)

Unrestrained involvement in land management is a fundamental element in creating a protective framework (Logue et al. 2018). The literature acknowledges requirements for Indigenous-led operationalisation. However, few discuss the need for cooperative partnership during the establishment stages (Frankel and Janke 1998; Maclean et al. 2022). Maclean et al. (2022); Frankel and Janke (1998); recognise the benefits of two-way knowledge sharing for all collaborators. Therefore, the Indigenous-led bush food and botanicals sector needs to determine the level of outside influence (e.g. government laws, frameworks or resourcing) it will allow to ensure successful labelling or certification systems, whilst not compromising the objective of an Indigenous self-reliant economy (Terri Janke and Company 2017; Maclean et al. 2022).

Potential challenges or negative considerations

Considerable consultations between businesses, corporations, industry leaders, and financial investors must occur in the establishment of a labelling or certification system to mitigate IK and cultural loss (Sanderson, Wiseman, and Stamboulakis 2018). A designated independent governance body must be created to administer and audit the certification and labelling scheme (Jefferson 2021). Before registration, a governance body fit to administer a CTM system needs to be identified, established, and appropriately funded so that issues like those of the Australian authenticity scheme are not repeated (Australian Government 2019; Graber and Lai 2011; Martin et al. 2019). Guidelines containing details on registration, support, control, auditing, and financing of the scheme must be created. The ‘association’ must be independent from the label owners, and controlled by an elected governance board that represents the diversity of actors in the Indigenous bushfood and botanical industry (Graber and Lai 2011; Jefferson 2021).

To create a good governance system, you need to structure support for each of the independent Indigenous nations and develop a good governance system that can channel upwards. There is a need to create that structure that supports suffrage, so each can vote for representatives as they move up. This is a very complex governance system. (Participant 7, Personal Interview with author, November 11, 2021)

Using non-Indigenous legal constructs, such as filing a CTM with IP Australia, is an essential formative step for developing a certification system for bushfoods (Martin et al. 2019). The certification system’s structure and application could centre around key Indigenous principles and certification rules based on traditions, regulations, institutions, and boundaries (Robinson and Raven 2017, 2020). Vigilance is required when incorporating Indigenous customary law into Western systems, like labelling and certification schemes, because disputes may arise between parties based on overlapping knowledge and cultural practices, and cultural misappropriation (Robinson and Raven 2020). Further inquiry is needed to explore how structures can be shaped or created anew to generate beneficial outcomes.

Enterprise structures for First Nations bushfoods, arts and labour sectors in Australia

This section discusses examples of associations, organisations, and alliances in Australia seeking to use, or already using, labelling, provenance and certification mechanisms. Some of the co-authors here have collaborated with these organisations since their inception, and key individuals were also interviewed in 2021–22. These mechanisms are employed by the respective groups to meet specific economic and cultural requirements. They are presented as examples to draw lessons and ideas from to enable the discussion about, and development of, an Australian labelling and certification scheme for Indigenous-owned bush food and botanical products.

The first nations bushfood and botanical alliance Australia (FNBBAA) and the inaugural national bushfoods symposium statement

The First National Bushfood Symposium, held in November 2019, brought together 120 Indigenous delegates from across Australia with varying interests within the bush foods and botanicals sector. The symposium had a key aim of increasing Indigenous participation in the $20 million bush food industry, (Australian Government n.d.a). The key outcome was the formation of the National Indigenous Bushfood Statement, and the subsequent First Nations Bushfood and Botanical Alliance Australia (FNBBAA n.d.). The FNBBAA Board consists of Indigenous peoples involved in the bushfoods sector from across the country, which acts as the elected body representing Indigenous interests and leading change in the bushfood and botanical industry. FNBBAA’s four main actions, to implement the Symposium Statement, include: implementation of protocols to set national standards on working with First Nations peoples; provenance and authenticity; law changes focusing on IP and ABS; and education and awareness (Australian Government 2021; FNBBAA n.d.).

Given its national focus and Indigenous leadership, FNBBAA makes sense to take a ‘peak body’ role and lead the development of a national CTM, or to coordinate a range of relevant CTMs, depending upon the aims of different people in different parts of the sector. FNBBAA has recently launched a programme called ‘Pathways to Sovereignty’ which is designed to help identify Indigenous owned and led products, assist with protection of ICIP and ensure benefit-sharing, and support transparency of provenance from different parts of the Country. The launch of this programme occurred at the National Sovereign Food & Botanicals Symposium, which was held in Darwin 8–10th November 2023 with more than 600 attendees. The FNBBAA website explains:

FNBBAA technology, policy and partnerships strive to ensure the value of First Nations storytelling in the Sovereign Food & Botanicals industry. This includes culturally appropriate methods for compliance with Indigenous Cultural & intellectual Property (ICIP) standards. Meeting the respected obligations of free, informed, and prior consultation for consent. And ensuring the commercial value created and extracted throughout the entire sector value chain is fairly distributed for the shared benefit of community, country and the future of our culture (FNBBAA, accessed 14/12/23).

We can therefore see the beginnings of a merging of complimentary Indigenous-led measures including CTMs, ICIP protections, and ABS, albeit in its early stages.

Northern Australian Aboriginal Kakadu Plum Alliance (NAAKPA)

Founded in 2018, NAAKPA is a non-distributive alliance, consisting of northern Australian Aboriginal enterprises harvesting Kakadu Plum/Gubinge, which is governed by representatives from each of the member enterprises (NAAPKA n.d). NAAKPA’s goals are to improve the growth and harvesting process of Kakadu Plum, create products from its production, manage and facilitate contracts within the industry, research, and protect and development the industry and its members through the value chain.

NAAKPA lists the three main mechanisms required to protect Kakadu Plum and associated IK as certification, provenance and traceability, and intellectual property (in the form of a Geographic Indicator (GI)). NAAKPA has received three years of funding from the Department of Climate Change, Energy, the Environment and Water (DCCEEW) to develop a certification framework. Through the Mamabulanjin Aboriginal Corporation, NAAKPA is in consultation with various Indigenous corporations engaged in the Kakadu Plum supply chain to understand how the framework should operate to serve all possible beneficiaries (NAAPKA n.d).

NAAKPA’s Provenance and Traceability Project works with Australia’s Nuclear Science and Technology Organisation (ANSTO) to use iso-elemental signature technology to identify signatures for Kakadu Plum plants in the supply chain. With funding from DCCEEW, NAAKPA is developing a Kakadu Plum Provenance Database, based on mapping the origin points of the Kakadu plum, to enable the identification of the provenance of Kakadu Plum in the supply chain (NAAPKA n.d). The Provenance and Traceability Project is also working to establish a Kakadu Plum Geographical Indicator (GI). GI’s have their advantages and disadvantages, however, NAAKPA's current and revised GI methods would enhance the protection of IK and the identification of Kakadu Plum through a future Kakadu Plum GI (NAAPKA n.d).

The Federation of Victorian Traditional Owner Corporations – Traditional Owner Native Foods and Botanicals Strategy (TONFAB)

The Federation of Victorian Traditional Owner Corporations (FVTOC), created in 2013, is an alliance of legally recognised Traditional Owner Groups across Victoria. FVTOC developed the Traditional Owner Native Foods and Botanical Strategy (TONFAB) strategy in 2021 to progress increased political involvement, economic opportunities and caring for Country. TONFAB provides a ‘set of principles and strategic priorities to facilitate greater self-determination for Traditional Owners’ and a framework with policy and practice guidelines for a competent Native Foods and Botanicals Industry led by Traditional Owners (Victorian Traditional Owner Native Food and Botanicals Project Control Committee Members 2021).

TONFAB includes three programmes on provenance, markets, and practices. The Provenance programme focuses on legislative changes, support systems and investments needed to improve Indigenous Cultural Intellectual Property (ICIP) (FVTOC 2022). It emphasises the importance of authenticity and equity for those associated with or utilising IK and native species. The Market programme focuses on the pathways to enable Traditional Owner leadership in the bushfoods industry (FVTOC 2022). Certification and traceability are provided as mechanisms that protect provenance and promote authenticity in the market. The Practice programme, which aims to create leadership opportunities within the market for Traditional Owners, focuses on IK use within bushfood and botanical supply chains. Acknowledged as an interweaving of elements of Indigenous culture, the Practice programme emphasises the need to embed culture and self-determination into all uses and management of native species (FVTOC 2022).

Australian Authenticity Scheme by the National Indigenous Arts Advocacy Association (NIAAA)

The National Indigenous Arts Advocacy Association (NIAAA) Australian authenticity scheme was established in 1998. NIAAA scheme’s main goals were to protect Aboriginal and Torres Strait Islander artists and ensure compensation for their products, ensure buyers were receiving authentic pieces of art, expand consumer knowledge on variations of Indigenous art, and educate participants on the differences between authentic and inauthentic artwork (Jefferson 2021). The authenticity scheme utilised two different labels, slightly differing in design, to distinguish between works that had a collaboration with non-Indigenous individuals and those that did not (Jefferson 2021). Issues began to arise with the system when artists had to prove they identified as Aboriginal and/or Torres Strait Islander and were accepted as such by an Indigenous community to register (Jefferson 2021). Graber and Lai (2011) argued that the system failed because the top-down approach had minimal stakeholder consultation, difficulties determining what defined the standard and compliance, the certifier of the scheme owned the trademark rather than an established independent body, and poor funding meant insufficient marketing. Graber and Lai’s (2011) analysis suggests the need for an independent governance body in charge of funding and marketing, separate from the organisation that owns the trademark or authentication label.

The failure of NIAAA highlights the importance of establishing a governance body, before the introduction and use of an authentication label, to administer a CTM system that includes a funding mechanism (Australian Government 2019; Graber and Lai 2011; Martin et al. 2019). There are differences of opinion on where this funding should come from. Graber and Lai (2011), for example, note that state support may be beneficial in the initial stages to enable marketing and consumer education to promote the scheme. Some organisations and stakeholders, however, discourage state funding because previous government-run and funded initiatives, which have not resulted in change, have built mistrust among Aboriginal and Torres Strait Islander peoples (Graber and Lai 2011; Rival, Montet, and Pioch 2016). Failed authentication schemes provide cautionary experiences and lessons that can be utilised for establishing a bushfood CTM system. Jefferson (2021) and Graber and Lai (2011) findings encourage further investigation into the major considerations to be wary of during CTM framework development.

Supply Nation

Supply Nation was established in 2009 under the name The Australian Indigenous Minority Supplier Council as an Australian First Nations supplier organisation. First created in Western Australia, Supply Nation connects Indigenous businesses across Australian states and territories. Their aim is to shape the rapidly evolving Indigenous business sector, including the bushfood and botanical industry (Supply Nation n.d.). There are two levels of ownership each with their own certification mark, which distinguishes between Supply Nation Registered businesses being 50% or more Indigenous owned, and Supply Nation Certified suppliers that are 51% or more Indigenous controlled, managed and owned. Their certification marks are based on a five-step verification process that certifies a business listed on Indigenous Business Direct as being Indigenous owned and is regularly audited to ensure this criterion. The free online listing strategy promotes businesses that are at least 50% Aboriginal and Torres Strait Islander owned (Supply Nation n.d.). Supply Nation’s paid members, such as governments and corporate organisations, also receive a member certification mark that demonstrates their choice to support the vision of Supply Nation. These certifying marks work to generate significant social return, increase Indigenous employment, and create and enhance Indigenous businesses within the wider Australian economy (Supply Nation n.d.).

What needs to happen for improvements/success

A successful framework and CTM scheme should produce economic benefits and enable positive changes to Indigenous culture, health and well-being, self-determination, and environmental authority; and increase Indigenous people’s ownership (Idris 2003; Logue et al. 2018; Maclean et al. 2022; Marinova and Raven 2006). Implementation of a CTM system for bushfoods will require a governing structure, such as an association, to enable Indigenous control and development of the certification and its rules and respond to Indigenous concerns and market changes. Indigenous leaders within the governing structure must comprise most of the board. Arguably, FNBBAA has emerged as the key First Nations peak body, which could administer a system nationally.

… you’ve got to look at the people who are administering [the CTM system]. Are there people like me sitting in a university, going out making these assessments of Aboriginal people, whether they should be part of an Indigenous scheme? There’s so many things wrong with that. So, does it follow all the way through to the people who are assessing and crediting the people who comprise the board who designs the accreditation scheme? (Participant 1, Personal Interview with author, November 23, 2021)

Improving mechanisms within the industry is just as important as enhancements made to a potential CTM. Logue et al. (2018) argue that a lack of support networks, restricted access to industry mentors, financial and support resources, and other factors currently prevents enterprise growth. Certification and labelling are essential to commercialising the bushfood industry because they will enable flow of economics benefits to Indigenous enterprises and people (Lingard and Martin 2016; Logue et al. 2018). The issue that continues to arise is how to embed Indigenous customary values and laws within Australian legal systems and economic approaches, like certification scheme rules, without compromising customary values (Gorman et al. 2020; Sinjela and Ramcharan 2005).

… so how do we then take [an Indigenous CTM] system and turn it into something new and fantastic, and not box it into a Western system that, of course, requires it to be Indigenous led. Yeah, benefits are being Indigenous led … if we can adapt, work on, create, develop a system that hasn’t been conceptualised yet … in accordance with … Aboriginal and Torres Strait Islander peoples understanding of that inter-connectivity. (Participant 3, Personal Interview with author, December 22, 2021)

We suggest that Australia’s benefit-sharing regime, derived from NP with a focus on R&D, could be broadened to include ‘biotrade’ in the bushfoods and medicines’ context through a CTM system. We also suggest that a rating scheme be applied to benefit-sharing within the CTM (and potentially more broadly to ABS agreements, if made public) that indicate the level and kind of commitments to benefit sharing, which could be establishing alongside or as a labelling or certification scheme.

Broadening benefit-sharing expectations in the biotrade/bushfoods and medicines context in Australia

There is a growing expectation of benefit sharing with Indigenous people for Australian biotrade activities, which are based on the use and trade of IK associated with native species. There is growing recognition in Australia of the need to re-balance inequities against Indigenous entrepreneurship and activity. While many bushfoods enterprises are gradually becoming Indigenous-owned/led from a relatively low base, using benefit-sharing arrangements with non-Indigenous enterprises and suppliers could be a positive additional step. This approach could follow a ‘fair trade’ model with a larger payment (e.g. an extra 7–10%) made than the market rate for a good purchased specifically from Indigenous enterprises or suppliers. Australia requires a hybrid regulatory approach involving an Indigenous enterprise steering group (such as FNBBAA) to ensure control is held with Indigenous people, whereby resourcing for NP enforcement is provided by government or other sources, and compliance and market distinction could operate through a CTM.

… both as a government official … as well as a consumer of successful certification labelling schemes that really do have an impact on consumer buying habits … the fact that successful examples exist … would seem to indicate that they can be successful and there can be benefits that flow. (Participant 2, Personal Interview with author, December 21, 2021).

In other regions, such as Africa, there are several recent projects that seek to achieve something similar in ‘ABS-compliant value chains’, which have an ABS agreement in place with Indigenous or local producers, and often include other measures of fairness and equity. With the support of funders including the EU and agencies like GIZ, they have supported ‘upgrading’ and value addition for local producers in African value chains like marula and rooibos (ABS-Biotrade 2023).

A potential ABS rating scheme or certification

There are challenges in implementing an ABS system in Australia and globally since the Convention on Biological Diversity Secretariat (1993) and the NP (2010) came into force. ABS contracts are proving to be a major challenge with concern from researchers that the process is too cumbersome (Jinnah and Jungcurt 2009; Laird et al. 2020). Disconnection from Country through colonisation, and the problems with Native Title, plus the gaps in the legal geographies of the ABS framework mean that more needs to be done to genuinely support Indigenous actors in the bushfoods space. While many governments and ‘development assistance’ actors have created model agreements or template ABS contracts and ABS negotiation guidelines, there are still complexities in negotiating and establishing effective and fair agreements. Uncertainty also exists for enterprises around what monetary ‘benefit-sharing’ would look like in different contexts and types of research (e.g. pharmaceutical, foods, botanicals, cosmetics, nutraceuticals, agriculture, biotechnology, fibres and others). Many working in the sector do not know how to judge what might be ‘fair and equitable’ and what are normal levels of ‘benefit’ (if there is a ‘normal’). This means there are often problems of lack of transparency and confused expectations about benefits. The only ABS certification that exists is through the Union for Ethical Biotrade (UEBT) label, training and certification. While UEBT was registered as a CTM in Australia, the mark lapsed in 2019. We suggest that there is a role for an ABS certification or an inclusion of ABS within CTM frameworks, like that offered by UEBT or a parallel approach, that is tailored to the specific needs of the Australian bushfoods sector, Indigenous businesses, and Aboriginal and Torres Strait Islander cultures and values.

The NP is set up in a way that is too bureaucratic. It is the reason we have moved away from formal ABS agreements towards licence agreements. This contractual approach to ABS fits better into enterprise actions with other businesses. (Participant 7, Personal Interview with author, November 11, 2021)

Union for Ethical BioTrade (UEBT) label

The Union for Ethical BioTrade started in 2007 following United Nations Conference on Trade and Development (UNCTAD) deliberations that led to the development of a ‘BioTrade Initiative’. UEBT is a non-profit organisation setting international ethical sourcing practices for businesses and suppliers (Union for Ethical Biotrade 2020). The UEBT label is a certification label that indicates a business meets the standards for ethically sourcing ingredients for the conservation of biodiversity and respect for people (Union for Ethical Biotrade 2020). To fit with certification definitions and UEBT’s specific guidelines, any product displaying the label adheres to legislation, sources biodiversity sustainably, invests in socio-cultural sustainability, promotes respect for the rights of actors, ensures transparency around land tenure, and fair and equitable sharing of benefits (Union for Ethical Biotrade 2020). The UEBT certification relies on independent audits to manage products that utilise the label and protect against uncertified UEBT members using the label (Union for Ethical Biotrade 2020). This prominent and well-known certification label indicates that brands are committed to investing in and promoting ethical sourcing of ingredients, knowledge and other resources.

As of June 2023, UEBT have 150 members across Africa, Asia, Europe, Latin America, North America and Oceania (Union for Ethical Biotrade 2020). Members include brands, cooperatives, individual farms, manufacturers, and processors that apply, continue through the UEBT review process, and outline a work plan to improve ethical sourcing systems (Union for Ethical Biotrade 2020). The UEBT, however, has had to grapple with the complexity and ambiguity of ABS systems, negotiating ABS contracts, complying with systems of rules and audits, and upfront costs of joining certification schemes (Sanderson, Wiseman, and Stamboulakis 2018). As a certification label, UEBT is the only major certification to require international ABS compliance, and it supports its members with ABS training and advice. As the ABS system in Australia matures, and bushfoods enterprises look at developing certification schemes and CTMs, the successes and challenges faced by UEBT, and their member entities provide important lessons. A CTM can advise consumers about ethical payment and labour in product sourcing and also advise if there is benefit sharing with Indigenous peoples. An ABS rating scheme as part of a CTM could support transparency and awareness.

A proposed ABS rating scheme within certification frameworks

The monetary side of benefit sharing is often focused on royalties of profits. This allows an enterprise to begin generating revenue before payments are made, particularly for sectors with shorter R&D timelines like food and cosmetics. Thus, an ABS rating scheme or certification could focus on profits to allow products to come to market so there is knowledge and experience of market demand and size. It could have a ‘Platinum, gold, silver, bronze’ tier system, or similar, to provide a simple scale from which enterprises, consumers and publics could consider how fair and equitable a benefit-sharing arrangement is. Our percentage of profits indicated in Table 1 are meant as guidance and could be adjusted. We suggest this as a rating scheme that could be promoted by Indigenous organisations, industry bodies or government as either a voluntary label, or potentially as a form of certification of ABS if backed by government and the Indigenous bushfoods sector.

Table 1. ABS royalty rating scheme.

Royalty Rating	Description	Likely Industry/Enterprise Context
Platinum	50–100% of profits shared with Indigenous providers and producers.	This is where the producer is an Indigenous owned and led enterprise, or social enterprise.
Gold	10–50% of profits shared.	This is likely to be a fair trade company, social enterprise, or company with strong CSR effort, or partly Indigenous owned or led. More likely to be food or cosmetics companies.
Silver	1–10% profits.	This might be many companies in the space that are not Indigenous owned, for longer term projects with medium – long R&D timelines, less direct relevance of the IK and DSI based projects, or a lesser fair trade/community focus by the company.
Bronze	0–1% profits shared.	This is for long term R&D project such as pharmaceuticals, where DSI-based and project not closely relevant to the Indigenous Knowledge.

This scheme is directed towards Indigenous-owned enterprises, other enterprises (e.g. social enterprise) with a strong ethical and social impact ethos, and companies that are sharing benefits with Indigenous and local providers. We anticipate that it may be easier for companies with shorter R&D timelines to comply, or companies with minimal or no R&D. If no R&D occurs, benefit sharing may still occur through biotrade (more like a fair trade and/or a social enterprise model). Benefits and profits from ABS, the CTM and biotrade benefit sharing could be re-invested into Indigenous enterprises for ‘upgrading’ their products (i.e. value-added and not just raw natural ingredients) within the value chain. A new scheme would allow greater growth and expansion of Indigenous employment, and greater opportunity for culturally beneficial harvesting on Country.

Conclusions

The Indigenous-led bushfoods and botanicals sector in Australia faces a positive future, as Indigenous enterprises expand in the market and put forth a range of statements and initiatives to assert and protect Indigenous people’s rights and benefits. However, there remain considerable challenges related to misappropriation of IK; non-Indigenous entities using the patent system to claim intellectual property over IK; and consumer recognition of the provenance of bushfoods products and whether they come from Indigenous owned or led enterprises. We suggest improvements to the Australian ABS system, and labelling and certifications, including expanding the way we think about the conjunction of ABS and certification. The expansion of a ‘benefit-sharing’ system in Australia to biotrade transactions for relevant industries (e.g. bushfoods, skin care, botanicals), using a CTM similar to the UEBT certification and label, and including a rating scheme, could help enable and streamline transparency ABS system and compliance mechanism that equitably distributes benefits from the utilisation of IK associated with GBR to Indigenous peoples. In other regions, such as Africa, there is already an emphasis being placed on ABS-compliant value chains including supporting greater value addition ‘upgrading’ for local producers. The system could be supported through initiatives raised as policy options by IP Australia in their IK Project consultations relating to patent disclosure of origin, possible sui generis protections, and an Indigenous advisory body for patents and trademarks – initiatives which we support. Further research is also required that explores the types of CTM, like geographical indicators, that can protect Indigenous-led bushfoods, which we plan to address in future papers.

Acknowledgements

This research was supported by the Faculty of Arts, Design and Architecture at University of New South Wales and the Australian Research Council Discovery Projects scheme DP180100507 Indigenous knowledge futures: protecting and promoting indigenous knowledge (2018-2022, extended to 2025).

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This research was supported by the Faculty of Arts, Design and Architecture at University of New South Wales and the Australian Research Council Discovery Projects scheme DP180100507 Indigenous knowledge futures: protecting and promoting indigenous knowledge (2018-2022, extended to 2025).