Considering Indigenous data in research

Indigenous Cultural and Intellectual Property (ICIP) refers to Indigenous peoples' rights to their cultural heritage, traditional knowledge and traditional cultural expressions. This is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Where a research project is being undertaken, it is important to consider what ICIP is incorporated, and how ICIP will be protected.

In addition to considerations relating to ICIP, a research project may involve Indigenous Data (ID). This involves data about or from a First Nations person/community, and can include ICIP, private information and intellectual property (IP) material.

Where research involves IP, there must be considerations of ICIP best practice, privacy and IP obligations, and Indigenous Data Sovereignty (IDSov). IDSov is the right of First Nations peoples to exercise control over their IP, expressed throughout the data ecosystem (collection through to destruction). The right to IDSov is also enshrined in the UNDRIP.

The application of IDSov is through implementation of Indigenous Data Governance (IDGov). Where a research project is being undertaken with information on or about First Nations people, it is important to consider how to ensure IDSov and implement IDGov.

Please see below resources to support best practice engagement with First Nations people and their ICIP and ID, and assist in the implementation of IDSov and IDGov:

• AIATSIS Code of Ethics for Aboriginal and Torres Strait Islander Research – Guidelines to promote ethical and responsible practice in Aboriginal and Torres Strait Islander research in Australia.
• ATSIDA Protocols – Data archiving protocols for First Nations data.
• FAIR Guiding Principles for scientific data management and stewardship – Principles for data management when humans use technological support to handle data.
• Global Indigenous Data Alliance - CARE Principles for Indigenous Data Governance – Principles to advance Indigenous innovation and self-determination through the responsible use of Indigenous data. These principles complement the FAIR Principles, which encourage open data movements that consider both people and purpose.
• Indigenous Knowledge: Issues for protection and management – A 2017 paper by Terri Janke and Company, commissioned by IP Australia, that explores the relationship between tradition-based knowledge of Aboriginal and Torres Strait Islander peoples and issues of intellectual property, cultural heritage and economic empowerment.
• IP Australia and Ninti One: Final Report on stand-alone legislation for Indigenous Knowledge (IK), 2022 – This report discusses the potential elements of stand-along legislation that would support Aboriginal and Torres Strait Islander peoples to protect and commercialise their Indigenous Knowledge (IK).
• Lowitja Institute & Maiam nayri Wingara: Taking Control of our Data – Discussion paper on Indigenous Data Sovereignty in Australia.

• Maiam nayri Wingara – The Australian Indigenous Data Sovereignty Collective.
• Maiam nayri Wingara Principles – Asserts the right Indigenous peoples in Australia have to their data, and how it is collected, used, and accessed.
• NHMRC Ethical Guidelines for Research with Aboriginal and Torres Strait Islander Peoples – Framework for how research and participants should work together on research with Aboriginal and Torres Strait Islander peoples and communities.
• NHMRC Keeping research on track II – Guidelines to support First Nations research participants and communities.

• NIAA Framework for Governance of Indigenous Data - Guidelines for building strong governance around the use of Indigenous data.
• Our Culture: Our Future - Report on Australian Indigenous Cultural and Intellectual Property Rights – This report contains findings and recommendations for the improved recognition and protection of Indigenous Cultural and Intellectual Property (ICIP), and identifies the ICIP rights of Aboriginal and Torres Strait Islander peoples.
• UNDRIP – The highest legal instrument which enshrines the inherent sovereign rights of First Nations people.
• UNDRIP Business Guide - Provides practical guidance for business to understand, respect, support the rights of Aboriginal and Torres Strait Islander people, and embed those rights into business practices.
• UNDRIP Community Guide - Designed to assist Aboriginal and Torres Strait Islander people familiarise themselves with the Declaration and how the rights can be used in everyday life.
• World Intellectual Property Organisation - Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge – The first international Intellectual Property treaty recognising Indigenous Knowledge.

Further resources:

• Australian Government National Cultural Policy - Revive: a place for every story, a story for every place, February 2023 – The Australian Government’s five-year plan to revive the arts in Australia. Revive is structured around 5 interconnected pillars within the Government’s strategy. ‘Pillar 1: First Nations First’ is to recognise and respect the crucial place of First Nations stories at the centre of Australia’s arts and culture.
• Productivity Commission - Closing the Gap review – Review on the progress of the National Agreement on Closing the Gap which calls for fundamental changes to deliver on the Agreement.
• Productivity Commission - Report on Aboriginal and Torres Strait Islander visual arts and crafts 2022 – This report explores the history, growth and state of the sector and the market for visual arts and crafts, and makes specific recommendations to the Government to address key deficiencies and issues the sector faces. A key finding of the report is the inadequacy and inability of current legal protections to protect ICIP.