Abstract
Recently, interest in ‘bush tucker’ foods has surged. Indigenous Australians should be empowered to determine how their knowledge is used when these products are commercialised. To exercise control over the development of the native foods industry, Indigenous Australians could establish a certification regime to ensure that their knowledge is appropriately converted into commercial products. This could be done through the strategic use of intellectual property, specifically through certification trade marks. Creating a certification mark for native foods could represent an important part of a decolonial policy agenda aimed at reimagining the regulation of native biodiversity and cultural knowledge in Australia.
Mainstream interest in the development of commercial food products based on plants that are endemic to Australia – termed ‘native foods’, ‘bush foods’ or ‘bush tucker’ – has grown substantially over the past decade. This trend is evidenced, for example, in the recent proliferation of cookbooks that aim to teach people how to introduce ingredients derived from Australian native plants into their kitchens. 1 Similarly, ‘culinary experiences’ have emerged as popular cultural tourism options in many parts of Australia, which may include activities such as guided bush tucker walks, outback dining and traditional hunting led by Aboriginal guides. 2 Research into the chemical, biological and agronomic properties of native plants has also ramped up at universities and research institutions across the country, creating increased opportunities for the integration of Indigenous and Western scientific knowledge. 3
In these contexts, it is fundamental that Indigenous people and communities are able to determine how their knowledge about Australian native plants and foods is used by non-Indigenous individuals and institutions. The development of the native foods and agribusiness sector should be driven by Indigenous people, while the benefits derived from this process should be shared broadly among Aboriginal and Torres Strait Islander communities. In other words, the Australian native foods industry should be built upon a model of Indigenous self-governance rather than on interventions by governmental authorities or other non-Indigenous institutions.
Setting aside the obvious issue of potential misappropriation of Indigenous knowledge by non-Indigenous actors, several factors explain why Aboriginal and Torres Strait Islander people should oversee the evolution of the Australian native food industry. These factors include the totemic relationships that certain cultural groups have with particular plants and the customary rights and duties that characterise the internal governance structures of different communities. 4 While a robust native foods industry has the potential to benefit Australians of all backgrounds, given the significant historical and ongoing contributions that Aboriginal and Torres Strait Islander peoples have made to the refinement of foods derived from the continent’s native flora, the commercialisation of native food products should primarily serve the economic, legal, socio-cultural and environmental interests of Indigenous Australians.
One way that Indigenous groups could ensure that they exercise control over the development and expansion of the Australian native foods and agribusiness sector would be to establish an effective certification regime to ensure that the knowledge and practices of Aboriginal and Torres Strait Islander communities are appropriately converted into commercial products. The creation of an effective certification regime could be enabled through the use of intellectual property, especially by strategically leveraging trade-mark law. A trade mark is a sign or symbol that identifies and distinguishes the particular goods or services of one trader from those of another, which enables the trade mark owner to cultivate brand recognition and reputation.
In this way, trade marks operate as shortcuts, allowing consumers to efficiently identify the nature, quality and source of a particular product or service. There are several subsidiary kinds of marks that fall under the overarching category of trade marks. One of these is the ‘certification mark’, which is a specialised kind of mark that indicates that goods or services comply with certain standards, for example, as related to quality, content, manufacturing method or geographic origin. Certification marks resemble another category of intellectual property, namely ‘geographical indications’, the purpose of which is to identify a particular good as originating in a specific region where certain qualities, the reputation or other characteristics of the good are essentially attributable to its geographic origin. In other countries, Indigenous people might prefer to utilise geographical indications as a means to control the commercialisation of their products. However, Australian law does not formally recognise geographical indications. Instead, the legal system in Australia effectively treats certification marks as geographical indications in the domestic context. 5
The Australian legal framework for certification marks
The creation of a special certification mark or marks to designate Australian native foods would allow Aboriginal and Torres Strait Islander individuals and communities to control how native food products and their components are sourced, developed and commercialised. This is because certification marks, like the general category of trade marks, are a form of intellectual property that enables the owner or owners of the mark to develop a particular brand identity while also helping customers to easily determine that any product labelled with the mark is of the nature, quality and source that they expect. In other words, certification marks allow their owners to regulate ‘authenticity’, the meaning and scope of which is up to the owners themselves to define.
One aspect of certification marks that could make this form of intellectual property especially useful for Indigenous Australians is that these marks are typically registered and owned by an independent body or organisation that does not itself trade in the goods or services that bear the mark. Instead, the owner of the certification mark will grant permission to approved traders to use the mark to market goods and/or services for which it is registered. Aboriginal and Torres Strait Islander groups could join together and take advantage of this arrangement by forming an independent, cooperative organisation that would register a certification mark, which in turn would be used to designate Australian native foods that meet the standards of provenance, authenticity, quality, etc. that the group would determine. This would ensure that individuals or entities not approved by the group cannot use the group’s branding to market unauthorised products as certified native foods.
By creating a standardised certification mark for Australian native food products, an Indigenous-led governance group could set the terms and conditions under which this brand may be used, including by non-Indigenous persons and entities. This governance body would have several legal remedies at its disposal to ensure that the native foods certification mark is not misused, and that it is only associated with products that the group certifies as authentic native foods. For instance, unauthorised use of the mark could give rise to a common law claim for ‘passing off’, or alternatively a claim for trade mark infringement under the Trade Marks Act 1995, if the governance group can demonstrate that another party has used a substantially identical or deceptively similar sign as a trade mark on the same kind of product for which the group’s certification mark is registered. 6 Additionally, remedies could be sought for violations of the Australian Consumer Law, which prohibits people from engaging in misleading or deceptive conduct in the course of trade or commerce. 7
It is important to recognise that the procedure for obtaining a certification mark is more onerous than for a standard trade mark. In addition to complying with most of the substantive requirements that apply to standard trade marks, applications for certification marks must also be accompanied by a set of rules that prescribe when and how the mark may be used by authorised users. These rules should also indicate how disputes over uses of the mark will be settled. After reviewing the application, IP Australia will send the proposed rules to the Australian Competition and Consumer Commission (ACCC), which must approve the application and the rules. The ACCC will review these materials and assess their consistency with the parts of the Competition and Consumer Act 2010 that deal with anti-competitive conduct, unconscionable conduct and consumer protection. 8 Once registered, the rules governing the use of a certification mark can only be changed with the consent of the ACCC. In addition, permission from the ACCC is required before a registered certification mark can be assigned to a third party.
In developing and administering a certification mark scheme for Australian native food products, the Indigenous-led governance body should also consider how other market participants would relate to this new brand. For instance, the group would likely need to deploy an advertising campaign to build name recognition for the certification mark, so that consumers associate the mark with the kind of authenticity in the native foods and agribusiness sector that the group seeks to promote. Additionally, the governance group would need to navigate a tension between simultaneously allowing the certification mark to be used relatively broadly by businesses that want to ethically commercialise Australian native foods, and ensuring that the rules for use of the mark are robust enough to maintain a consistently high standard of quality.
A native foods certification mark: Deriving lessons from past experiences
If an Indigenous-initiated and directed organisation were created to govern the use of an Australian native foods certification mark, inspiration could be drawn from a prior initiative that was designed to protect the cultural and economic interests of Aboriginal and Torres Strait Islander communities and to avoid consumer confusion over products that lack authenticity. Specifically, lessons could be derived from the ‘Label of Authenticity Project’, which created two trade marks that were established in 1998 by the National Indigenous Arts Advocacy Association (NIAAA) for the purpose of encouraging consumers to purchase authentic Australian Indigenous artwork. The Project had four specific goals, which were to: (1) protect Australian Indigenous artists and ensure that they were adequately paid for their work; (2) protect buyers who wanted to purchase authentic Australian Indigenous artwork; (3) expose people to the different styles of Australian Indigenous artwork; and (4) create a system that would highlight the differences between authentic and copied artworks. 9
The NIAAA Label of Authenticity system consisted of two separate trade marks. The first of these was the Label of Authenticity Mark, which could only be placed on an ‘authentic’ work, meaning one that was created exclusively by an Aboriginal or Torres Strait Islander artist. The second mark was the Collaboration Mark, which could be used for any work that resulted from a collaboration in which an Aboriginal or Torres Strait Islander person provided significant creative input, and that was the subject of a ‘fair agreement’ with a non-Indigenous manufacturer or other collaborator. 10 These two marks were similar in appearance, but could be distinguished by the white border that surrounded the symbol of the Collaboration Mark, designed to reflect the involvement of non-Indigenous people in the work or its manufacture (Figure 1).
According to the NIAAA Label of Authenticity system of governance, the use of both marks was made conditional on the inclusion of information about the relationship of the Indigenous creator of the work in the application for the mark. Once certified by the NIAAA to use the Label of Authenticity Mark, an Indigenous creator could use that mark on their work. In contrast, the Collaboration Mark could only be used on the specific work for which use of the mark was sought. Applications for the Label of Authenticity Mark could only come from Indigenous creators of art works, while applications for Collaboration Marks had to be made jointly by the Indigenous creators and the non-Indigenous people involved in the creation of the product to be protected. Another notable distinction between these two kinds of marks was that the NIAAA charged the trade mark user a license fee that was assessed for each product on which a Collaboration Mark was attached, while an analogous fee was not charged for the use of the Label of Authenticity Mark.
Ownership of the trade mark rights for both the Label of Authenticity Mark and the Collaboration Mark vested exclusively in the NIAAA, which also had sole authority to set and administer the rules under which the marks could be used. Applications for the use of either of these marks were made directly to the NIAAA, which assessed all of the application materials and, in the case of an application for a Collaboration Mark, determined whether the collaboration was the subject of a fair agreement between the Indigenous creators and the non-Indigenous people involved in the creation of a particular product.
As provided under the Australian legal framework for certification marks described earlier, the ACCC oversaw all decisions made by the NIAAA about whether to grant an application for use of the Label of Authenticity Mark and the Collaboration Mark. This meant that the NIAAA was required to disclose its rationale if an application for use of its certification marks was refused. Furthermore, in the event of a dispute regarding a decision made by the NIAAA, the applicant would be entitled to have the decision reviewed by an independent expert. Meanwhile, certified users of the marks were required to comply with a set of rules that the NIAAA established for the use of each of the two marks. These rules included the requirement that certified users attach an additional label to any marked work to provide information about the Indigenous creator and the process of producing the work. This requirement was designed to educate consumers about the range of Indigenous cultures, experiences and expressions that exist throughout Australia.
Notably, the evaluation of applications for use of the Label of Authenticity Mark and the Collaboration Mark by the NIAAA did involve an assessment of the aesthetic quality of the work or whether the work complied with any relevant cultural conventions or protocols. However, a certified Indigenous creator could lose their right to use the Label of Authenticity Mark if they included stories, symbols, styles or other aesthetic elements without obtaining any necessary permission from the elders of the relevant Indigenous group. Both marks that the NIAAA controlled were designed to be used on a broad range of products and services that embodied the cultural expressions of Aboriginal and Torres Strait Islander peoples, including but not limited to traditional art and craft works.
Conclusion
Although the Label of Authenticity Project represented an interesting example of Indigenous-led regulation of a particular class of goods and services, namely those which embodied forms of cultural expression, the Label of Authenticity Mark and the Collaboration Mark were ultimately abandoned after the NIAAA disbanded in 2002. 11 Given the short period of time between these certification marks becoming available and when they ceased to be awarded, it is difficult to evaluate the success of the Project in meeting its four aforementioned goals. Nevertheless, the Label of Authenticity initiative could provide a model for an Indigenous-driven intellectual property strategy to govern the production and commercialisation of Australian native foods.
Specifically, an independent body comprising representatives of different Aboriginal and Torres Strait Islander communities could create a certification mark and draft the corresponding rules that would set the terms as to how the mark could be used to create brand identity for Australian native food products. The group could then submit an application to IP Australia, to register the certification mark along with the proposed rules, and IP Australia would then send the rules to the ACCC for evaluation, as described above. Assuming that the certification mark and rules were approved, the Indigenous-led governance body could begin to accept applications for would-be users of the native foods’ certification mark. Ultimately, a plurality of different certification marks could be established in association with distinct kinds of products, or where it would be more appropriate for different Indigenous groups to control particular aspects of the native foods and agribusiness sector.
It is important to recognise that the Indigenous-led governance organisation could face certain challenges when creating a native foods certification mark. These include cultural and logistical complications that could arise when coordinating between diverse Aboriginal and Torres Strait Islander communities, which have ties to over 250 different language groups spread across all Australian states and territories. Another potential challenge is that any certification mark governance group would need both funding, for example to secure legal representation, and sufficient institutional capacity, to ensure that the group is able to consistently administer its certification mark, including making determinations as to which products qualify to bear the mark.
The certification mark governance body would also need to be prepared to enforce its trade mark rights in the event of infringement by unauthorised users of the certification mark – a process that could involve expensive litigation or alternative dispute resolution procedures. As these factors illustrate, the process of establishing, monitoring and enforcing a certification mark scheme entails various costs, both up-front and ongoing. The governance group would need to determine how it would cover these costs. Possible strategies could include charging authorised users of the certification mark a membership or subscription fee, or negotiating royalties based on a percentage of the revenue raised through sales of products branded with the mark. Although these issues present certain challenges for any group that would seek to establish a native foods certification mark, they are not insurmountable. Indeed, it is likely that the positive outcomes which would result from the creation of an Indigenous-controlled certification mark for Australian native food products would far outweigh the costs.
The misappropriation of native flora, fauna and cultural knowledge by non-Indigenous people began with European settlement and colonisation of Australia and continues today. 12 One strategy to prevent and perhaps begin to reverse this misappropriation could entail Aboriginal and Torres Strait Islander people overseeing and deriving benefits from the burgeoning native foods industry. Importantly, the Indigenous-led governance organisation described in this article could endeavour to reappropriate the management of Australian native foods by incorporating customary legal principles into the rules that would set the terms for use of the prospective certification mark. For example, the certification mark rules could recognise customary protocols for the management of knowledge, ensuring that culturally sensitive and confidential knowledge is not made public when native food products are commercialised.
However, this is not to say that the path forward would be easy. The certification mark governance body would need to simultaneously grapple with the complexity of achieving consensus on a consistent set of rules between a range of different Indigenous groups spread across the continent, and remain vigilant to the possible negative effects of weaving customary law into the contemporary Australian legal system, which is fundamentally derived from settler-colonialism. Ideally, the establishment of an Indigenous-led native foods certification mark would form part of a broader decolonial policy agenda aimed at reformulating Australian laws and policies that regulate native biodiversity and cultural knowledge, towards greater recognition and promotion of the sovereignty of Aboriginal and Torres Strait Islander communities.
NIAAA Label of Authenticity and Collaboration Mark Trade marks of the National Indigenous Arts Advocacy Association Inc.
Footnotes
Acknowledgments
The author is grateful to Professor Brad Sherman of The University of Queensland School of Law for inspiring the development of this article and for suggestions that helped to improve earlier drafts. The author would also like to thank the two anonymous reviewers for their comments and suggestions.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
1
Andrew Fielke, Australia’s Creative Native Cuisine (Brolly Books, 2020); Damien Coulthard and Rebecca Sullivan, Warndu Mai (Good Food): Introducing Native Australian Ingredients to Your Kitchen (Hachette, 2019); Lily Alice and Thomas O’Quinn, Australian Bush Superfoods: Plant-Based Recipes at Home (Hardie Grant, 2017); Julie Weatherhead, Australian Native Food Harvest: A Guide for the Passionate Cook and Gardener (Peppermint Ridge Farm, 2016); John Newton, The Oldest Foods on Earth: A History of Australian Native Foods with Recipes (NewSouth Books, 2016).
2
3
See, eg, ARC Industrial Transformation Training Centre, ‘Uniquely Australian Foods: About’ https://uniquelyaustralianfoods.org/about/; James Cook University, ‘Tropical Indigenous Ethnobotany Centre (TIEC)’ 
.
4
Kylie Lingard and Paul Martin, ‘Strategies to Support the Interests of Aboriginal and Torres Strait Islander Peoples in the Commercial Development of Gourmet Bush Food Products’ (2016) 23(1) International Journal of Cultural Property 33–70.
6
Trade Marks Act 1995 (Cth) s 120.
7
Competition and Consumer Act 2010 (Cth), Schedule 2 – The Australian Consumer Law s 18.
8
10
11
Natalie Stoianoff and Alpana Roy, ‘Indigenous Knowledge and Culture in Australia: The Case for Sui Generis Legislation’ (2015) 41(3) Monash University Law Review 745–84, 752.
12
For example, as Daniel Robinson and Margaret Raven have documented, several patent applications filed in recent years have inappropriately attempted to establish proprietary claims in relation to Australian plant species for which there is Indigenous knowledge. Daniel Robinson and Margaret Raven, ‘Identifying and Preventing Biopiracy in Australia: Patent Landscapes and Legal Geographies for Plants with Indigenous Australian Uses’ (2016) 48 (3) Australian Geographer 311–31.