Biology • Year 12 • Module 7 • Lesson 20
Indigenous Protocols and Bush Medicine
Apply the bioprospecting/biopiracy distinction, the Nagoya Protocol framework, and cause-and-effect reasoning to real data and scenarios.
1. Interpret the data — reported biopiracy disputes, 1990–2020
The bar graph below shows the approximate number of documented biopiracy disputes reported in peer-reviewed literature and advocacy databases per five-year period, from 1990 to 2020. The Nagoya Protocol entered into force in October 2014. 6 marks
Figure 1. Approximate count of documented biopiracy disputes per period. *2020 data partial (single year). Adapted from Robinson & Raven (2017), Nat Plants 3:17051, and Third World Network advocacy reports. Bars are illustrative of documented trends.
1.1 Describe the overall trend in reported biopiracy disputes from 1990 to 2014. 2 marks
1.2 Using the data and your knowledge of the Nagoya Protocol, suggest two reasons why the number of reported disputes fell after 2014. 2 marks
1.3 A student argues: "The decrease after 2014 proves the Nagoya Protocol has solved biopiracy." Evaluate this claim, identifying at least one limitation of this interpretation of the data. 2 marks
2. Cause-and-effect chain — from oral knowledge to biopiracy
The cause boxes below describe events that lead to biopiracy occurring. Fill in the empty effect boxes to complete the chain. 5 marks (1 per effect + 1 for overall outcome)
3. Compare bioprospecting and biopiracy across five criteria
Complete the table. In each cell write a specific feature of the named strategy — not just "yes/no". 10 marks (1 per cell)
| Feature / criterion | Ethical bioprospecting | Biopiracy |
|---|---|---|
| Community consent before research | ||
| Benefit-sharing arrangement | ||
| Nagoya Protocol compliance | ||
| Community's legal options if dispute arises | ||
| Long-term consequence for trust between researchers and Indigenous communities |
4. Apply to a new scenario — Kakadu plum and the cosmetics industry
In 2019 a Canberra-based cosmetics company began marketing a range of skin-care products featuring Terminalia ferdinandiana (Kakadu plum) extract, marketed on the basis of its exceptionally high Vitamin C content. The company sourced the fruit commercially from Australian growers but did not approach any of the Aboriginal communities — including Yawuru, Miriwoong, and other Northern Australian groups — whose traditional knowledge had identified the plant's properties and who had gathered it as food and medicine for millennia. The company did not claim any patent on the plant itself but trademarked its branded formulation. 6 marks
4.1 Does this company's conduct constitute biopiracy as the term is used in this lesson? Justify your answer with reference to consent and benefit sharing. 3 marks
4.2 Does the Nagoya Protocol apply to this case? Identify one specific limitation that might prevent it from offering a remedy. 2 marks
4.3 Describe one action the company could take — without stopping production — to move its conduct closer to ethical bioprospecting. 1 mark
Q1.1 — Trend description (2 marks)
Reported biopiracy disputes increased steadily from 8 in 1990–94 to a peak of 42 in 2005–09 [1]. The period 2010–14 remained high at 38, broadly continuing the upward trend before the Nagoya Protocol entered into force in late 2014 [1].
Q1.2 — Two reasons for the post-2014 fall (2 marks)
Possible reasons (any two accepted): (1) The Nagoya Protocol's FPIC and benefit-sharing requirements legally obliged researchers in signatory countries to obtain consent before collecting, reducing the frequency of non-consensual access [1]. (2) Increased global awareness of biopiracy may have encouraged researchers and companies to seek voluntary agreements proactively, reducing the number of disputes that escalated to formal documentation [1]. (3) Some countries began enacting domestic access and benefit-sharing legislation that added compliance requirements — reducing incidents of non-compliant access [1].
Q1.3 — Evaluate student's claim (2 marks)
The claim overstates the evidence. The data only shows a decrease in reported disputes, not a confirmed elimination of biopiracy [1]. Possible limitations: the Nagoya Protocol is not retrospective (does not address pre-2014 cases); not all countries have ratified it; domestic implementation varies; and a drop in reported disputes may reflect under-documentation rather than genuine decline in incidents [1]. The Protocol is a meaningful step, not a complete solution.
Q2 — Cause-and-effect chain answers
Effect 1: The community is not consulted, their consent is not sought, and they have no knowledge that research using their plant knowledge is underway — FPIC is absent.
Effect 2: The patent examiner finds no documented prior art, so the claimed compound appears novel — the patent application meets the novelty test despite the community having known about the plant's properties for generations.
Effect 3: The company gains exclusive rights to commercially produce and sell products based on the compound. The community — whose knowledge pointed researchers to the plant — is legally excluded from commercialising it.
Effect 4: The community has no benefit-sharing agreement and no legal route to challenge the patent or claim a share of commercial revenue — they are effectively excluded from the outcomes of their own knowledge.
Overall outcome term: biopiracy
Q3 — Compare bioprospecting vs biopiracy (10 marks)
| Feature | Ethical bioprospecting | Biopiracy |
|---|---|---|
| Community consent | FPIC obtained in writing before research begins — community understands purpose, terms, and potential commercial outcomes | No consent sought or obtained — community may not know research is occurring |
| Benefit-sharing | Negotiated agreement — royalties, co-ownership, research funding or other equitable return agreed before access | No agreement — community receives no financial or social return from commercial products |
| Nagoya Protocol | Compliant — meets PIC and mutually agreed terms requirements | Violates Nagoya Protocol principles (if post-2014 and in a signatory country) |
| Legal options if dispute | Dispute resolution mechanisms established in the mutually agreed terms before research began — community has contractual standing | Community may lack legal standing — oral knowledge is not prior art; existing IP law offers limited remedies |
| Long-term trust | Builds trust and collaborative relationship — enables future research partnerships with community support | Damages trust — communities become reluctant to share knowledge; research access becomes more difficult for all researchers |
Q4.1 — Does conduct constitute biopiracy? (3 marks)
Yes, this conduct is consistent with biopiracy as defined in the lesson. Biopiracy is the commercial use of biological resources or traditional knowledge without consent or benefit sharing. The Aboriginal communities whose traditional knowledge identified Kakadu plum's properties and dietary use were not consulted (no FPIC) [1], and no benefit-sharing arrangement was established — the communities receive no financial return from a product built on their knowledge [1]. The absence of a compound patent does not negate the ethical issue: the traditional knowledge that identified the plant's Vitamin C properties underpins the product's commercial value, and that knowledge belongs to the communities who developed it [1].
Q4.2 — Does the Nagoya Protocol apply? (2 marks)
The Nagoya Protocol may apply in principle as Australia ratified it in 2022 and this conduct is ongoing after that date [1]. However, a key limitation is that effective implementation requires domestic legislation — Australia's access and benefit-sharing legislation is still developing, and without enforceable domestic law the Protocol's requirements may not be legally actionable against this company [1]. Accept also: the Protocol applies to "access to genetic resources" which may not clearly cover commercially sourced fruit rather than research-grade collection.
Q4.3 — One action to move toward ethical bioprospecting (1 mark)
Any one acceptable action: negotiate a royalty or revenue-sharing agreement with relevant Aboriginal communities whose traditional knowledge identified the plant's properties; establish a formal acknowledgement and community partnership on product labelling and marketing; fund community health or cultural programs as a benefit-sharing mechanism; enter a retroactive benefit-sharing agreement with Yawuru, Miriwoong or other relevant communities. [1]