Recognising Indigenous customary law of totemic plant species: Challenges and pathways

Abstract

The Nagoya Protocol encourages academics, government bureaucrats, and traditional owners to look at how customary law might be utilised within state law frameworks to improve and resolve “access and benefit‐sharing” processes. This paper examines and reviews legal, anthropological, and historical texts relating to biodiversity and associated knowledge to explore Aboriginal and Torres Strait Island peoples’ customary laws and governance. Understanding the broader place of Indigenous customs, laws, and belief, as sitting on the oral–written continuum and expressed through the Dreaming, provides the foundation for understanding Indigenous customary laws as they relate to plants and animals. The paper highlights, through examples, that plants and animals may be regarded as totemic species, that are rights controlled and/or relational to specific individuals or families. Looking towards native title, community protocols and a “competent cultural authority,” the paper seeks out tools which might expand the regulatory toolbox and help connect Indigenous law and state law relating to Indigenous knowledge and totemic species.