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New Zealand Journal of Environmental Law |
Last Updated: 13 February 2023
1
Using a Legally Enforceable Knowledge Trust Doctrine to Fulfil the Moral Obligation to Protect Indigenous Secrets
Professor Paul Martin* and Professor Michael Jeffery, QC†
This article discusses the potential legal obligations of researchers who obtain cultural, technological, religious or mystical knowledge from Indigenous custodians. It is argued that the combination of four existing areas of law: confidential information, equitable estoppel, statutory prohibitions against misleading or deceptive conduct, and unjust enrichment may in effect provide a comprehensive protection to Indigenous peoples against the misuse of knowledge they share with researchers, even without sui generis law or international treaties. Unlike previous approaches to this topic, this paper is not proposing new legal concepts. The obligations discussed are already present in most common law jurisdictions. Affected researchers may be surprised at the extent of this protection, and the commensurate extent of their legal obligations. Research institutions may find themselves being held accountable for not having complied with these responsibilities. An outline of one mechanism to formalise and make clear researcher responsibilities is provided. It is hoped that such a mechanism will aid researchers and research institutions in fulfilling their legal and moral responsibilities in regard to Indigenous knowledge.1
*Professor of Law and Director, AgLaw (The Australian Centre for Agriculture and Law), University of New England. The invaluable assistance of this author’s research assistant, Christopher Stone, in the preparation of this article is gratefully acknowledged.
†Professor of Law and Director, Centre for Environmental Law, Macquarie University. The invaluable assistance of this author’s student research assistant, Scott Hickie, in the preparation of this article is gratefully acknowledged.
1 This article is dedicated to Garry Caines, a Dharwal man whose highlighting of the issues triggered this study.
1. INTRODUCTION
Many research organisations seek cultural, technological, religious or mystical2 information from Indigenous people. With this comes a moral responsibility to ensure the free prior informed consent, benefit sharing, and self-determination of Indigenous peoples. However, to date it has been argued that there is no legal force to this moral duty, and that Indigenous custodians who are aggrieved by what they see as misuse of their secrets have no basis for compensation or to force restraint. A range of solutions to this problem has been proposed. These include international conventions and sui generis laws, science organisations’ voluntary codes of conduct, and contracts made by Indigenous organisations with researchers on behalf of communities or individuals who may disclose. All of these solutions are deficient.
Most efforts to provide a basis for protecting Indigenous secrets, outside of those proposing entirely new legislation, have focused on intellectual property law, formal contracts, or have looked to International Conventions. In regard to intellectual property law, the secrets to be protected, while important to both the Indigenous custodian and the research recipient, may have little or no commercial value, and they may be neither the exclusive property nor the invention of the Aboriginal person who discloses them. Ideas such as ancient stories that are not “original” nor “owned” nor “material” in the European sense are unable to demonstrate the required novelty, exclusivity and commercial value to fit with the concepts embedded in intellectual property law. In addition, as Indigenous secrets are usually communal property it is hard to find a practical means to identify whose interest is to be protected and what form of protection will be feasible.
None of the International Conventions and Declarations which touch on issues of Indigenous knowledge3 has proven to be sufficiently acceptable for
“Conceptions relating to the natural environment, such as temporal and spatial frameworks; agricultural activities and knowledge; ecological knowledge and practices; medical pharmacopeia and therapeutic practices; cosmologies; navigational knowledge; prophecies and oracles; magical, spiritual, prophetical, cosmological and religious beliefs and practices relating to nature, oceanography, volcanology, [sic] environmental conservation [and] practices, astronomy and meteorology; metallurgical knowledge; numeral and counting systems; animal husbandry; aquaculture; food preservation, preparation, processing and fermentation; floral arts; and textile knowledge and arts.”
widespread adoption by developed economies. In addition, the benefit-sharing objectives of the Convention on Biodiversity 4 (“CBD”) have been undermined by the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”)5 by all State parties to the General Agreements on Tariffs and Trade (“GATT ”) and subsequently subsumed into the the World Trade Organization. Its effect has been to entrench commercial considerations as superior to cultural interests in dealing with traditional knowledge. Contract is potentially more useful, but the requirements of “privity” 6 and the complexity of agreements which must foreshadow an almost infinite variety of possible future issues limit its practical application to ensure that the wishes of individual custodians of Indigenous knowledge are honoured in practice.
This article argues that the legal position of Indigenous people in jurisdictions whose common law is based on the English system is far stronger than has been believed to date, even without any new legal rights or any special status case for Indigenous citizens. We use two such jurisdictions (Australia and the US) to illustrate this point. Whilst there are differences in the details of how these various rules are applied in each jurisdiction, we argue that in these jurisdictions enforceable rights to protect Indigenous secrets arise from a “cocktail” of long-standing common law principles, combined with statutory instruments which refine and develop long-standing civil rights. These legal protections apply to many research transactions, the combined effect being to impose legal duties on most occassions when researchers obtain secret knowledge from Indigenous peoples. This network of legal obligations creates a significant governance responsibility for the institutions who employ these researchers, for it is these institutions who will be eventually answerable to the courts as to whether their responsibilities have been properly acquitted.
In the field, there are uncertainties in practice, and difficulties in relation- ships as both sides of the dialogue try to find out what ground rules are required, and what practical steps will translate morality into practical solutions. Voluntary codes of conduct are sometimes expected to sufficiently address the moral and legal ambiguity.7 In practice, many such codes elevate the interests
Convention on Biological Diversity, 1992 (International Convention) articles 8(j) and 10(c) (which was ratified by Australia in 1993, implemented through the Environment Protection and Biodiversity Conservation Act 1999 (Cth)); Draft United Nations Declaration on the Rights of Indigenous Peoples, 1994 (International Convention), article 29.
of the science to be equal or superior to the interests of the Indigenous peoples, and replace an “obligation to protect” with an obligation to consult.8
The legal principles we highlight suggest a primary legal duty to the people who provide Indigenous knowledge, not to the science in whose interests it was collected nor to the scientists who have harvested it. This will be disconcerting to researchers who have, in good faith, tried to balance their moral obligation to their science with their moral obligation to those they research. However, the legal obligation to place the specific interest of citizens with a proprietory interest above the pursuit of science is no more onerous than the obligations that other scientists carry to protect the interests of their commercial research collaborators.
As with the seminal Australian Mabo case,9 identification that Indigenous peoples do have a pre-existing right that we have failed to acknowledge will cause disruption and perhaps trigger conflict. Having recognised that we have taken what is not legally ours, it is both our moral duty and in our practical interest to resolve the issues efficiently, reasonably, and with generosity.
There are practical reasons why delay in resolving these issues is a problem. On the one hand we have ageing Indigenous populations, language loss, and ongoing threats to traditional culture. On the other hand, Western institutions and individual researchers are already taking information from Indigenous peoples, creating largely unspecified legal obligations. The potential for future legal enforcement and economic, or other, costs to these institutions does exist. The moral discomfort that this situation poses is no less an important reason for resolution.
This article carries the message to institutions such as universities, muse- ums, research organisations and businesses that their governance systems for managing Indigenous secrets should be as rigorous as those they use to protect other commercially valuable intellectual assets. This problem is not one for Indigenous peoples to solve — it is a problem for the research and business communities and one that they need to solve in their own interests as well as in the interests of those from whom the knowledge was obtained. We propose a mechanism for the efficient acquittal of these governance responsibilities.
Ethics of Archaeology: Philosophical Perspectives on Archaeological Practice (Cambridge University Press, Cambridge).
2. LEGAL DUTIES TO PROTECT INDIGENOUS KNOWLEDGE
A lot of intellectual energy has been spent trying to find an intellectual property instrument that will provide Indigenous people with control and/or a beneficial interest in Indigenous secrets or knowledge. Typically this has sought to either:
None of the above approaches has yet proven feasible in Australia or the US.
However, what if there were a more direct relationship between the moral imperative to protect Indigenous knowledge and the protection of law? What if there were a branch of the law in which “right” was not only a moral issue, but an enforceable imperative? The rules of equity arose in England when the strictures of common law proved unable to satisfy the demands of justice. The High Court of Chancery would determine cases on behalf of the King according to principles of equity or fairness and could go beyond the strict letter of the law. Whilst over time the Courts of Chancery and the tenets of equity have merged with the common law, courts exercising an equitable jurisdiction still serve their original function. Equity is an over-arching (or underpinning) mechanism to ensure just behaviour in relations between citizens. It is not restricted to specific situations, and can move freely into areas where it has not previously been applied.
Equity serves as the legal basis for enforcing proper behaviour when one person is in a situation of dependence on another. Examples include the enforcement of a fiduciary relationship where a professional or a business manager with superior knowledge and in a position of authority abuses their position of power; or trustee relationships where a trustee can be forced to comply with the conditions under which they were given an asset to manage to the benefit of some other person. It is the contention of this article that not only might the law of equity provide a strong legal safeguard for the protection of
Indigenous knowledge, but that the safeguard already exists in law but simply has not been fully recognised or used to date. Not only does this equitable safeguard already exist, but also there are other common law and statutory safeguards that already exist which might equally be used to a similar effect.11
This article discusses four overlapping means by which Indigenous knowledge can be protected: confidential information, equitable estoppel, misleading or deceptive conduct, and unjust enrichment. These legal categories share a common characteristic of converting moral principles into legal and enforceable obligations. The degree to which confidential information, equi- table estoppel, and unjust enrichment are distinct categories, or subsets of the laws of equity, is an interesting jurisprudential question, but not one we intend to explore as its practical ramification for the governance questions we are concerned with here is small.
2.1 Principle 1: The Legal Duty to Honour Confidences
If an equitable duty on the part of researchers to honour the confidential information provided by Indigenous custodians is established, then the breadth of this duty and its implications for research management are substantial. In effect this duty could fill the void that many have proposed to fill with sui generis legislation or International Conventions. If this duty already exists then it has significant implications for the management of the knowledge already imparted as well as the knowledge that we may acquire in future.
Under the law in both Australia and the United States it is clear that some trade secrets are afforded a level of protection based on a mixture of equity and contract, creating a specific intellectual property right.12 This arises generally in commercial relationships where the holder of a secret discloses it for particu- lar purposes and does not wish it to be publicly disclosed. This information may nevertheless be protected from disclosure under trade secret law. This form of protection does not grant exclusivity in the holder for a defined period and would not prevent others from developing and using the same information through means other than having improperly obtained the information protected as a trade secret. In the context of a regulatory framework, trade secrets are
almost invariably dealt with in conjunction with unfair competition and unfair trade practices.13
The boundaries of what can be protected as trade secrets are ill-defined and evolving in both jurisdictions, although the law does clearly encompass some scientific information and may address some traditional knowledge. This potentially aligns local law with the expectations of Article 8(j) of the CBD which addresses knowledge collected informally over generations and communicated orally in the form of the community’s oral history. However, the capacity to use the law in this way is different in the two jurisdictions. The Australian common law provides a greater breadth of protection than is available in most of the US. We will begin this discussion with the broader opportunity.
In Australia the duty to protect confidences requires two elements:14
The duty exists both through contract and equity, but we are concerned here only with the equitable duty. It should be stressed that the cases are not restricted to the protection of economic interests alone. The leading case in this regard is Duchess of Argyll v Duke of Argyll 15 in the 1960s. This was a racy tale involving extra-marital affairs, photographs of sexual acts, and a great deal of media attention. During the divorce proceedings an (equitable) injunction against publication of newspaper articles was sought, arguing that confidences between spouses during marriage should be protected by the Court. The Court agreed. It laid down a principle that secret information provided in confidence in non- commercial relations, about non-commercial issues, can equally be protected by equity as commercial secrets. Information which is secret does not have to be of high commercial value to be protected.16 Nor does it have to be unique to an individual — a concept may already exist in other places or in other people’s heads but still be protected as a confidential disclosure.17
Breach of confidence has already been used in an attempt to protect Australian Aboriginal cultural knowledge. In the case of Foster v Mountford 18 an injunction was awarded against publication of a book containing cultural
images that had been revealed in confidence to an anthropologist. In that case the knowledge was images with cultural value, and economic value was not neccessary for the restraint to apply.
The breadth and flexibility of the available protection is far greater than might otherwise be thought. In the recent case of Rapid Metal Developments v Anderson Formrite 19 the Court examined the principles. Its comments would give heart to anyone sympathetic to the claims of Indigenous peoples that researchers who take their secrets have an enforceable legal obligation in how they use them:
[61] Thus, it is necessary for the person who receives information in confi- dence to establish what he is entitled to do with the information rather than what uses are prohibited: In LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 1 La Forest J noted (at 24): “Any use other than a permitted use is prohibited and amounts to a breach of duty. When information is provided in confidence, the obligation is on the confidee to show that the use to which he put the information is not a prohibited use.” See also Coco v AN Clark (Engineers) Ltd per Megarry J at 48. In most situations, the limits on the use of the information will be apparent from the circumstances in which the information is received. Consequently, it is not in every circumstance in which a person comes into possession of information known to be confidential that the person will come under a duty not to publish it: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 per Gleeson CJ at 222, citing Prince Albert v Strange [1849] EngR 261; (1849) 1 Mac & G 25; Duchess of Argyll v Duke of Argyll [1967] Ch 302 and Attorney-General v Observer Ltd; Times Newspapers Ltd; Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 260, 268.
And:
[78] It is apparent from these statements of principle that the grant of equitable relief is dependent on establishing that the obligation of confidence has been, or is about to be, breached. Clearly, an obligation of that type may be breached without causing identifiable detriment or harm. The result of the breach may simply be that the confidential information becomes known to a person that the provider of the information would prefer did not know: Attorney-General v Observer Ltd per Lord Keith of Kinkel (at 256). In my view, the requirement for proof of detriment is inconsistent with the established notion that the basis for
the exercise of equitable jurisdiction is to enforce the obligation of confidence. I believe the third element identified by Megarry J in Coco v AN Clark is better expressed by Gummow J in Smith Kline & French (at 87) as “an actual or threatened misuse of that information, without the consent of the plaintiff ”. On that basis, all that is required for a case of breach of confidence to succeed is proof of an unauthorised use of the confidential information.
Together, these statements would suggest that the onus is upon the recipient to identify what uses are permissible rather than upon the provider; and that it is not necessary to prove actual or even potential harm to restrain non- permitted use of secret information. Applied to Indigenous secrets disclosure it suggests that researchers have a high standard of accountability to identify and remain within the bounds of use that are consistent with the (perhaps unstated) preferences of the Indigenous custodian. Considerations of the interests of science do not emerge from the law. As will be discussed later in this paper, an equitable duty triggers a wide range of potential legal remedies.
The position in the United States is less supportive of the use of confidentiality to constrain unauthorised uses of Indigenous secrets, but it does potentially provide a basis where there is an economic interest involved, and possibly to give legal strength to a defined non-legal procedural obligation. Trade secrets are defined in the Restatement of Unfair Competition 20 as “any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others”.
The case of Moore v Marty Gilman, Inc 21 set out key elements a US court will consider in determining whether a trade secret should be afforded legal protection. These include:
This is reinforced by a provision of the Uniform Trade Secrets Act adopted by more than half of the US States:
Information including a formula, pattern, compilation, program, device, method, technique, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain secrecy.22
Such statements suggest that protection of secrets in the US is confined to commercial contexts. However, this may prove to be an unduly narrow interpretation. One possible extension of secrecy principles in the United States is suggested by the Supreme Court case of Snepp v United States.23 The Court imposed a constructive trust for the federal government’s benefit on the profits from a former CIA agent’s book which dealt with non-commercial secrets. The Court stated:
Rather, it is an employment relationship in which the employee possesses fiduciary obligations arising out of his duty of loyalty to his employer. One of those obligations, long recognized by the common law even in the absence of a written employment agreement, is the duty to protect confidential or “classified” information. If Snepp had breached that obligation, the common law would support the implication of a constructive trust upon the benefits derived from his misuse of confidential information.
Snepp’s book did not contain any classified information. He merely failed to adhere to protocol. The minority judgment highlighted that there had been no unjust enrichment.
This raises the possibility that even in the US information which may not necessarily be confidential in the traditional sense, which is obtained or utilised in a manner that does not follow a specific protocol (whether it be a research standard or consensual communication of information), may support the imposition of a constructive trust.
2.2 Principle 2: A Duty to Honour Assurances
Conversations between researchers and Indigenous custodians are often about building trust. At least on one side of such transactions the intention is to lead
the other party to disclose information that is valued by both the Indigenous custodian and the researcher. Many of the elements of a contract are present (agreement and consensual passing of value), but often value passes only one way. The value (or “consideration”) expected by the Indigenous custodian may be future, or accrue to other people such as future generations of the Indigenous community. Assurances that the information will trigger this provision of value may be pivotal to the decision to provide the information. However, the fact that consideration has not passed two ways can be a technical barrier to the finding of a binding contract.
In certain circumstances parties to legal proceedings to enforce an assur- ance can be “estopped” from claiming that there was no contract. The case then proceeds as if there was a contract. To establish equitable estoppel one party must show that they relied on an assumption to their detriment, and that the other party played such a role in the inducement of that assumption that it would be unconscionable for them not to rectify the detriment.24
The detriment need not be monetary25 and the inducement of the assump- tion need not be an explicit representation. The assumption can be induced by words, by conduct, and even by silence.26 As long as the representation would reasonably be understood by the person to whom it was communicated, it can give rise to an estoppel.27
In consequence, if a researcher receives Indigenous knowledge on the basis of certain assurances, that researcher, and their employing organisation, can be held to those assurances as though they were a legal contract. Silence on what might be done with the information may in itself be an assurance that is legally enforceable as if it were stated in a contract.
2.3 Principle 3: The Obligation Not to Mislead or Deceive
In both the United States and Australia (as with many other jurisdictions) stat- utory prohibitions against deception in business create a broad net of legal obligations. The scope of these legal obligations is wider in Australia than in the US, but in both jurisdictions these laws may form the basis of actions where the remedies are broad, and the extent of possible damages goes beyond any accounting of the direct harm that is done to the person deceived.
US law imposes a stringent duty not to be misleading or deceptive under the provisions of the US Federal Trade Commission Act 2000 (“FTC Act”) and Title 15 of the United States Code.28 It deals with:
Most State legislation mirrors or closely resembles s 5 of the FTC Act. Variance between States usually revolves around standing of different corporate entities to sustain an action.
In the US the elements of “unfair or deceptive acts or practices in or affecting commerce” have a strong consumer protection orientation. The FTC Amendments Act of 1994 specified the requirements for action as a deception which:
This formula originated in the FTC’s cigarette labelling rule published in 1964.30 In Johnson v Phoenix Mutual Life Insurance Co 31 a North Carolina federal judge summed up the three elements in the following statement: “[A] practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” 32
Indigenous plaintiffs would need to be able to position themselves as consumers of the research services in order to take advantage of the US prohib- ition against deception. Indigenous plaintiffs are also likely to face a further impediment to action. Under the FTC Act s 5 there is no private right of action. In North Carolina’s Unfair Trading Practices statutes, 75-1.1 is a verbatim enact- ment of the FTC Act s 5. This restriction of action has in part been justified on the basis that a successful plaintiff is entitled to triple damages.33
An alternative approach may be to claim that deceiving Indigenous custodians into surrendering a valued secret is a form of misappropriation, actionable under the “unfair method of competition” prong of the American law. Actions under this heading have mostly been under the Securities legislation within Title 15 of the USC in insider trading cases. However, there have been
other applications of the principle that are potentially relevant to the protection of Indigenous secrets.
The International News Service v The Associated Press case 34 involved the publication of summaries of news stories about World War I taken by Hearst’s International News Service (“INS”) from Associated Press newspapers. The Supreme Court found Associated Press had a quasi-property interest in the news that it collected. A majority of the Court was of the opinion that INS had engaged in unfair competition by taking news reports from Associated Press and using them without payment.
The misappropriation doctrine has remained controversial. It has survived, but has been restricted to cases involving costly-to-generate and time-sensitive information and commercial competition. While the spirit of the misappropriation doctrine in the International News Service case seems potentially relevant to Indigenous misappropriation claims, these are likely to be confined to situations where there is a discernible economic loss. This may be relevant (for example) to the appropriation of secret information about healing properties of plants, or knowledge leading to other commercially valuable discoveries.35 In summary, the American controls over misleading and deceptive conduct
are potentially useful to Indigenous plaintiffs only in contexts that have a clear business characteristic. This is because the US approach to deception in commerce is tightly focused upon the commercial nature of the transaction. There is one important exception to this rule: “passing off ”, which in many jurisdictions (including that of Australia) has evolved from a common law action into an action based in statutory provisions against deception or unfair competition in commerce. In the US the Indian Arts and Crafts Act 199036 aims to prevent the passing off of Native American cultural arts and artefacts:
it is unlawful to offer or display for sale or sell any good ... in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States.37
In this sense, it is linked with unfair competition and deceptive trade practices. Although of no assistance in preventing the unethical and unintended transmission of knowledge and information, this provision could be used to
prevent publication of traditional works that are sacred and secret to a particular tribe or community if a sense is given of these works being endorsed or pro- duced by that community.
The Australian anti-deception law casts a broader net, and is likely to be relevant to a far larger class of Indigenous knowledge transactions. Section 52 of the Australian Commonwealth Trade Practices Act38 states: “A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” Most research organisations satisfy the definition of being “a corporation”, but are they engaged in trade and commerce in their research activities? It is clear from the cases that public bodies can be held to be in trade or commerce, depending on the nature of their activities.39 Whether an activity has the character of being in trade or commerce is decided on the circumstances of the case. The fact that research is being performed by a public body will not prevent the operation of s 52. Thus, universities and other research institutions are not immune from actions under this section.40
The question of whether researchers of Indigenous cultural knowledge are engaged in trade or commerce has not been directly answered. However, in Chapman v Luminis Pty Ltd (No 5) 41 it was determined that a consultant engaged to research local Indigenous sacred sites had entered the consultancy contract in trade or commerce. In that case the statements made in their final report were held not to fall under the prohibition of s 52, but the application of the Act was demonstrated. Thus, a research organisation carrying out a funded consultancy would seem to be engaged in a commercial venture. It could be argued that researching for the purpose of commercial publication also fits the definition. If it were decided that such activities are indeed in trade and commerce there would be scope for a custodian of Indigenous knowledge to bring legal actions based on deception.
The deception does not have to be deliberate. A mistake on the part of a researcher might trigger liability.42 Under the Trade Practices Act there is a number of orders that can be made. These include substantial penalties, and damages without the obligation on the part of the claimant to have to prove the extent of (or even the existence of) economic loss. The courts can also impose community service and probation orders.43 The courts may require that the organisation perform some service to the community related to its breach, such
[1978] HCA 11; (1978) 140 CLR 216.
as organising seminars and pamphlets to educate the relevant segment of the community of their rights.44 Probation orders can require an organisation to implement an entire new compliance programme, or upgrade an existing one if it exists.
2.4 Principle 4: Unjust Enrichment
Unjust enrichment is an area of law that is being revivified.45 In a number of English common law-based jurisidictions, this form of remedy has had a resurgence, and this is illustrated by developments in both the US and Australia. In the United States Greenberg v Miami Children’s Hospital Research Institute 46 provides a good illustration of the capacity for unjust enrichment to supplement (or replace) equitable or contractual principles.
The plaintiffs (who were parents of children with Canavan disease, and non- profit organisations) gave blood and tissue samples, medical information, and family histories to the defendant researcher. The defendant isolated the genetic sequence and patented the work, thereby acquiring control over carrier and prenatal testing and gene therapy. The problem of the researcher dealing with genetic material provided unknowingly or by a vulnerable research population has been one of the concerns of Indigenous people. The crux of the plaintiffs’ allegations and action was: 47
... that at no time were they informed that Defendants intended to seek a patent on the research. Nor were they told of Defendants’ intentions to commercialise the fruits of the research and to restrict access to Canavan disease testing.
The case raised issues of direct relevance to provision of research infor- mation by Indigenous people. The plaintiffs’ claims were in part based upon a duty of informed consent which was rejected by the Court on the basis that finding this duty would “have pernicious effects over medical research, as it would give each donor complete control over how medical research is used and who benefits from that research”.48 The plaintiffs also raised non-disclosed financial conflicts of interest, but this line of argument was also rejected by
the Court. A further leg, which also failed, was an equity-based argument of fiduciary duty. The court held that:49
... Plaintiffs have not sufficiently alleged the second element of acceptance of trust by Defendants and therefore have failed to state a claim. There is no automatic fiduciary relationship that attaches when a researcher accepts medical donations and the acceptance of trust, the second constitutive element of finding a fiduciary duty, cannot be assumed once a donation is given.
However, the court did not rule out the possibility that a fiduciary relationship can, in some circumstances, derive from the relationship between researchers and research institutions and their research subjects. In particular this potential seems to remain where the research is non-therapeutic in nature. The court cited the Maryland Court of Appeals that “the very nature of nontherapuetic scientific research on human subjects can, and normally will, create special relationships out of which duties arise”.50 This would potentially apply in many instances of Indigenous research, such as cultural or natural resource use investigation.
Nevertheless, the Court was prepared to come to the aid of the plaintiffs with the distinct legal category of unjust enrichment. The Court’s decision reflected the jurisprudential perspective that unjust enrichment is not a subset of contract, or equity, or other common law principles, it is a distinct form of action. The Court stated that:51
[t]he Complaint has alleged more than just a donor-donee relationship for the purposes of an unjust enrichment claim. Rather, the facts paint a picture of a continuing research collaboration that involved Plaintiffs also investing time and significant resources in the race to isolate the Canavan gene. Therefore, given the facts as alleged, the Court finds that Plaintiffs have sufficiently pled the requisite elements of an unjust enrichment claim.
Principles of unjust enrichment seem to be largely common across English common law jurisdictions. The Australian federal court recently confirmed that this doctrine is definitely a part of Australian law.52 The courts have defined “enrichment” broadly as incorporating a range of benefits of value to the receiver.53 Career-enhancing publications, or receipt of payment for a consultancy, would fit comfortably within the cases. The enrichment must have
stemmed directly from another’s asset or labour, and again the definition of “asset” is broad. It is not required to be a material thing, nor for there to be a legal proprietary interest.54 Knowledge held by an Indigenous custodian can easily be characterised as an asset. Even if this were not the case, the relating of the knowledge can be regarded as labour.55
The phrase “unjust enrichment” is used legally in the sense of there being no just reason why the defendant should benefit. Many unjust factors have been recognised in previous cases and do not necessarily connote immorality on the part of the recipient. Three in particular are likely in the relationship between the custodian of Indigenous knowledge and a researcher: mistake, failure of consideration, and lack of intention to benefit.56
“Mistake” is where a person makes a decision which benefits another based on wrong information.57 The law distinguishes between mistakes of fact or law, and errors such as misprediction.58 Mistake can encompass simple ignorance, and it would not be surprising if Indigenous custodians often lack knowledge about the European legal system or the internal operations of research institutions. The potential for mistake is therefore substantial. Coupled with enrichment, such mistakes could result in the research institution becoming legally liable to compensate the custodian based on any benefits which accrue to it or the researcher.
“Failure of consideration”, unlike mistake, is not based on one party’s belief. It is determined objectively on the basis of how the parties behave.59 If, for example, the custodian believed that the research information would be used to benefit the Indigenous community, then a claim for restitution may arise if the knowledge is not used in this way. Should the researcher not be in control of the eventual uses of the knowledge then the potential for a failure of consideration is apparent.
“Lack of intention to benefit” can arise where the knowledge was given on the understanding that there would be no benefit to the researcher or others, but a benefit subsequently accrues.60
For a research organisation to defend an unjust enrichment claim to any benefits they gain they ought to ensure that the Indigenous custodian is in full possession of all facts relevant to their decision to share the knowledge, and that both the researcher and the Indigenous custodian are fully aware of the uses to which the knowledge will be put. Ensuring that the material is used in the ways
agreed at the time of its provision becomes a governance issue, for which many research institutions are likely to be ill-prepared.
Several toxic tort cases illustrate that a similar interplay between law and equity applies in the US as in Australia and how far the courts are prepared to go to provide a restitutionary remedy based, for the most part, on a doctrine of unjust enrichment.61 At least in the US context, whilst the unjust enrichment claim is born of equity, it can be both an equitable cause of action (such as for conversion or replevin) and a tort remedy.62 We will primarily deal with remedies in equity in the subsequent discussion, as the equitable remedies are the most far-reaching and flexible in the common law.
2.5 What Remedies are Available?
For researchers and their institutions an important consideration is the likeli- hood and extent of any damages or other remedies being awarded against them. As noted earlier, the courts of Chancery were not limited to damages in the remedies they could apply. They could prevent actions by injunctions, require that actions be done using orders of specific performance, and impose obligations on those who have a duty to exercise it properly and to account for any wrongful financial gain. One of the most important characteristics of equity, from the point of view of Indigenous custodians of knowledge, is that a legally binding trust is implied when a duty in equity is found.
A trust governs the administration of assets on behalf of third parties. It imposes strict legal obligations to manage that asset only for the purposes for which it was provided, and in the interests of those who are meant to benefit. The rules governing trusts are well developed, and strict. Trustees must exercise their duties faithfully or face the risk of personal liabilities.63 It is not essential that a trust be documented. A “constructive” trust arises if the defendant breaches an equitable duty. This well-settled doctrine, applicable in both the US
and Australian (and many other) legal systems, requires that any benefits are held for the beneficiaries. If trustees are negligent in their administration or go outside their powers then they can also be accountable.64
A recent Australian case which illustrates these principles is Pain v Pain & Ors 65 from 2006:
[26] In Muschinski v Dodds, Deane J described a constructive trust in these terms:
“Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.” 66
[34] A recent analysis of the nature of a constructive trust by legal academic John Dewar was in these terms:
“The flexibility of the imputed trust, its capacity to adapt itself to the contours of each relationship, has been made possible by the conceptual break from common intention. It permits the outcome of a case to be informed by the nature of the parties’ relationship as evidenced by their own intentions, the reasonable expectations attaching to relationships of a particular type and the flow of gains and losses during it. This avoids the potential unfairness, implicit in the older Australian case law and still present in the English, that recovery depends solely on what the parties agreed or intended: parties may agree to unfair outcomes. The potential for unfairness remains, of course. The circumstances in which a joint endeavour will be found to exist, or in which a claimant will be deemed to have gained as much as he or she have put in, are still matters of some uncertainty.”
In the US, the Restatement of the Law of Restitution 67 sets out the foun- dations of constructive trusts under §160. In Beatty v Guggenheim Exploration Co, Cardozo J stated:68
When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.
A more expansive articulation of the doctrine can be found in the 1990 US 10th Circuit Court of Appeal decision, United States Dep’t of Energy v Seneca Oil Co (In re Seneca Oil Co):
A constructive trust is an involuntary or implied trust by operation of law. It is imposed against one who by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds legal title to property which he ought not, in equity and good conscience, hold and enjoy.69
The three main elements in both jurisdictions are:
What might the application of equity mean for Indigenous people who have seen others gain economically from secrets that were provided in confidence? Once the conditions justifying a constructive trust have been found, the courts of equity have the ability to make various orders such as injunctions (which prevent further disclosure or use) or mandamus (which require positive actions or to trace and return profits that have unjustly been gained).
Tracing would allow an Indigenous custodian to “trace” what has been done with the secret ideas, identify who has gained and what they have gained, and to have the value dealt with in the way that the original (constructed) trust would have directed. It does not require that what is returned be exactly what was taken, even if the original knowledge has been converted (say) from ideas into artwork and thence into profit; or secrets about medicinal properties into
69 In re Seneca Oil [1990] USCA10 269; (1990) 906 F 2d 1445, at 1450.
70 G E Palmer (1978), The Law of Restitution (Little Brown & Company, Boston), §1.4 at
17. See also G M Long (2006), “The Sunset of Equity: Constructive Trusts and the Law- Equity Dichotomy”, 57 Alabama Law Review 875–914, wherein the author uses Alabama as a case study to examine the application of constructive trusts in novel and traditional circumstances.
pharmaceuticals. The courts can be wide-ranging in the remedies that they adopt, and will consider fairness and justice in crafting solutions.
Scalia J in Merten v Hewitt Associates 71 argues that a line must be drawn between a purely discretionary remedy imposed when justice dictates and a substantive/institutional rule of law, with the institutional approach having more judicial force and sway. This may result in some restriction on the capacity of courts to trace and return ill-justified benefits. He stated:
In contrast, a plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession. A court of equity could then order a defendant to transfer title (in the case of the constructive trust) or give a security interest (in the case of the equitable lien) to a plaintiff who was, in the eyes of equity, the true owner. But where “the property sought to be recovered or its proceeds have been dissipated so that no product remains, [the plaintiff ’s] claim is only that of a general creditor,” and the plaintiff “cannot enforce a constructive trust of or an equitable lien upon other property of the [defendant].” Thus, for restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.
There appears to be a divergence between the Australian and American approach around the institution/remedy dichotomy. Differing judicial positions on this dichotomy and the application of the constructive trust as more than a remedial tool of equity also exists between State jurisdictions within the United States. Thus it is difficult to draw a hard line of difference between the US and Australian law. However, the similarities are far more apparent than the differences for the management purposes which this paper addresses. Developments on both sides of the Pacific are substantially parallel.
The willingness of US courts to be innovative in the use of constructive trusts is illustrated by the statement of an Illinois court in the case of City of Chicago v Roppolo: 72
[t]he particular circumstances in which equity will impress a constructive trust are ... “as numberless as the modes by which property may be obtained through bad faith and unconscientious act”
In the case of Indigenous knowledge, courts have the capacity to address the problems of shared and uncertain “ownership” or insufficiently specified trust obligations in crafting their decisions. How to craft orders that would deal properly with collective interests and individual disclosure is an issue that requires more legal research.
2.6 In Summary: Potential Legal Claims of Indigenous Custodians
Even without sui generis reform and without any consideration of the racial identity of the custodians of knowledge, Indigenous people, as citizens, are entitled equally to rely upon a body of rights.
Indigenous peoples can avail themselves of contractual protections, but discomfort with the formalities and uncertainty on both sides of the dialogue make this a practical unlikelihood in most instances. Privity of contract considerations and formal inflexibilities also cast doubt on the effectiveness of some collective contract approaches that Indigenous groups are developing, but it ought be remembered that the existence of a contract does not exclude other remedies.
assurances that are economically significant (such as assurances of future share of lands or wealth), there is no reason to believe that estoppel only applies in such situations.
Combining these elements demonstrates that, even without new legislation or the adoption of international treaties, Indigenous plaintiffs might claim a legal right to protection under many circumstances:
For research institutions this suggests the need for a legally precaution- ary approach reflecting acceptance of an implicit moral “constructive trust” stance. Precaution would suggest that the information must be managed with the interests of the Indigenous custodians paramount, in accord with the expectations created at the time of giving. As trustees, researchers or the research institution must do more than merely comply with relevant agreements or professional codes. They must act diligently and with good faith to ensure that the purposes of those who gave the secrets are served, even if those purposes are not clear or unexpected circumstances arise. Good faith and concern for the less advantaged is the core of ethical and legal obligations. Serving science is not a legal obligation suggested by the common law, and mere consultation is unlikely to relieve the institution of its legal obligations.
3. THE CHALLENGE OF DESIGNING A GOVERNANCE APPROACH
From the perspective of a non-Indigenous lawyer the relationship between knowledge and power or wealth in Indigenous communities seems often to be different to that which applies in Western societies, where knowledge is commercially commodified. In Indigenous communities it is apparently not unusual to find that access to places or resources is allowed only to those who have demonstrated required levels of (sometimes esoteric) knowledge. It is not unusual that access brings custodial responsibilities. Secret knowledge carries symbolic value as a key to membership of a privileged group, with prestige and responsibility. Knowledge has value as a currency, and as a source of status.78 It is not surprising that Indigenous people can have reservations about
sharing it, even when in the eyes of other cultures this importance may seem disproportionate (as our attachment to the tokens of money have often seemed to non-monetarist cultures).79
Respecting these realities and Indigenous priorities seems the right thing to do, even without considering legal implications. However, there are problems in respecting these sensitivities, from a Western legal and institutional perspective. Traditional knowledge is a common pool resource. Individuals may hold it, but they do not do so exclusively.80 It is also held according to customary laws, poorly understood outside Indigenous nations. Most Western property rights systems are designed around private monopoly protection. Symbolic value is not recognised except where it has commercial value (as with designs or copy- right), though moral rights for artists goes some way towards this.81
There is also a problem of leakage. Any person in a tribal group can access common pool knowledge. The situation can arise where one tribal member holds information as secret, and another is prepared to disseminate it freely. The researcher can find themselves in a situation where they may be seen as dishonouring a trust if they use information that was once confidential but has now entered the public domain. Once information has entered the scientific pool of knowledge, it is almost impossible to hold back its flow, except through some recognisable form of private ownership. The moral obligations that may exist between the Indigenous custodian and the researcher are not a robust basis for respecting and protecting the knowledge that is provided.
Indigenous people and some researchers may use notions of economic value to argue for contractual or intellectual property protection. This often falls foul of the realities that such knowledge is not a monopoly, and that its economic potential is contingent upon further scientific discovery, or invest- ment in commercialisation. The value rarely fits neatly into the restrictive categories of recognised intellectual property, and the nexus between the original access and use and the eventual economic value is often tenuous. The economic value attributable to the source knowledge can be far less than the political and emotional value attributed to it by the custodian (or the economic benefit achieved by other service providers who participate in the value chain).
There are also major problems in determining how any eventual economic benefit should be distributed, when the real owner is a group of people that is not clearly defined at the time of entering into the agreement, or the time of commercialisation, and which will change over time.
Grappling with these complexities often leads to proposals to create structures such as complex intellectual property arrangements, corporations, foundations, and elegant trusts. Few of these are likely to be economically practical. The transaction costs82 are likely to “tax” the cash flows available from the knowledge to such a degree that its economic value is consumed in legal and administrative costs.
A final complication is the wide variation in personal and institutional preferences and approaches. The Indigenous custodian may want the infor- mation closely held for research purposes, or may be happy to see it used more widely if the benefits accrue to themselves or some purpose to which they are committed. They may have no goal other than to “do the right thing”. The researcher may have their own moral or legal considerations, and the organisation for which they work may have its own principles and structures. A “one-size-fits-all” solution is unlikely to be achieved quickly, if at all, and is most likely to be cumbersome and complex.
The basic principles for an effective interim approach are:
At the same time:
tations and requirements, knowledge types, potential commercialisation or other uses, and researcher/institutional situations.
A simple declaration of trust has the potential to satisfy all of these require- ments, largely because of the pre-existing legal regime that is designed to apply moral principles in circumstances of imbalance of power, and because the courts have great flexibility in how they can apply this law. Formalising the relationship as a trust in many instances would not involve creating new legal obligations on the researcher or their institution, for (as we have argued) much of the time these legal obligations are already present but hidden from view and unmanaged as a result.
The trust structure seems to us to be more culturally appropriate than other more formalistic mechanisms that are being proposed, such as formal contracts or administratively complex institutional structures. Holders of traditional knowledge do not hold it for their personal benefit alone. Whatever personal benefit they are entitled to is determined as part of this customary law obligation.83 This concept is culturally similar to a trust, in Western legal terms:
opportunity, under which one party is obliged to share the opportunity with the other rather than appropriate it for themselves. No document is needed. Even today when secret knowledge is used by researchers, a case can be made that a legally enforceable trust is created. Few researchers or institutions are aware that this is the case.
Our proposal is to use a simple form of declaration of trust, documented in the field, to regularise the access and use of Indigenous information, and to rely heavily on the well-developed law of trust to provide a powerful but flexible enforcement mechanism.86 This would explicitly convert the moral responsibility into a conventional legal responsibility traceable through the commercialisation and research processes, which can be backed by legal sanctions in the event of breach. For the sake of simplicity we refer to this as a “Knowledge Trust”.
Arguably, this is little more than regularising existing but unmanaged obligations, discussed in the first part of this paper. In itself, regularising this area would be an important advance on the status quo. A Knowledge Trust would not create a new form of property. It merely provides a mechanism to limit the use of what is disclosed, by the conditions that are set on that use by the provider. This is important because:
The process is simple. All that is required is a statement of the trust con- ditions. It is easy to envisage a plain English document standard form (the “Knowledge Trust Agreement”), in which the researcher and the potential provider of knowledge would fill out details of:
This need not be done in writing. Verbal evidence of the intent (recorded on tape or as pictographs) might serve equally as evidence of the donor’s intentions.
The consequent steps are then largely dependent on the administrative practices preferred by the organisation that takes the information, but it is envisaged that:
4. CONVERTING THE CONCEPT INTO REALITY
This paper has outlined an issue that ought to be of importance to researchers and research organisations who obtain knowledge from Indigenous custodians. It highlights that there is a suite of legal bases upon which Indigenous people may be able to rely should they wish to give legal strength to moral obligations. The paper indicates that legally it is the interests of the Indigenous custodians that ought to be paramount in the management of these issues.
The paper has highlighted a feasible and relatively simple mechanism to acquit this responsibility. We argue that whilst many researchers may prefer to have a different mechanism that better serves the interests of science, given that the legal obligations we outline already exist, some interim mechanism is
required. The mechanism we outline can be immediately implemented with negligible cost, allowing time for other more sophisticated approaches to be developed and negotiated with the Indigenous people who, in the end result, are the owners of the knowledge being sought.
There are many things that ought to be done in this field — the legal issues require more development, and the design and implementation of user-friendly and effective instruments and institutional arrangements will require more work. However, on this occasion further delay in implementation is likely to expose the research community to greater uncertainty and potentially legal obligations. Immediate action to better manage the situation would be well advised.
TREATIES
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