Keeping Our Data Strong: Upholding Indigenous Data Sovereignty Through Data Sharing Agreements

14 August 25

By Dr Terri Janke

Introduction

In our recent article AI Got No Dreaming, we explored how AI has the potential to both protect and endanger Indigenous Cultural and Intellectual Property (ICIP) and Indigenous Data Sovereignty. Now, we turn to one of the most effective safeguards: culturally grounded Data Sharing Agreements. These agreements play a crucial role in protecting Indigenous data — whether in the context of AI or the broader technological landscape.

Data Sharing Agreements are essential for managing and safeguarding Indigenous data, particularly at the point of collection, access, or sharing. They provide a legal framework that defines the conditions under which data is exchanged, ensuring clarity and respect for the rights of all parties involved.

In the context of Indigenous Data Sovereignty (IDSov) — which emphasises the right of Indigenous peoples to govern their data — these agreements take on profound cultural and political importance.

Dr Terri Janke giving the 2024 Swinburne Annual Barak-Wonga Oration

What Is a Data Sharing Agreement?

Data sharing agreements are formal arrangements that outline how data will be handled, used, and protected. These agreements often involve personal and sensitive information covered by the Privacy Act 1988 (Cth)—such as name, address, contact details, or health records.

Increasingly, they also address the handling of Indigenous data, knowledge and information collected about Indigenous peoples, their communities, and Country. This may include data related to identity and demographics, health, language, ecological knowledge, community information, or details a person’s lived experience.

Indigenous-Focused Agreements and Free, Prior and Informed Consent

For agreements involving Indigenous data, it is essential to uphold the principle of Free, Prior and Informed Consent (FPIC). This ensures that Indigenous communities fully understand and agree to how their knowledge and information will be collected, stored, accessed, and used. These agreements should also include clauses that protect Indigenous Cultural and Intellectual Property (ICIP) and uphold the collective rights of First Nations peoples to knowledge and cultural expression.

Embedding IDSov Principles

Indigenous Data Sovereignty (IDSov) emphasises the rights of Indigenous peoples to govern the collection, ownership, and application of data about them. A First Nations-focused agreement should consider the following:

Here are the key considerations:

1. Free, Prior and Informed Consent (FPIC)

First Nations people must provide consent before any data is collected, used, stored, or shared. Consent must be ongoing, meaning communities have the right to approve, refuse, or withdraw consent at any stage (Control).

2. Purpose and Parameters of Use

Clearly define how the Indigenous data will be used, by whom, and for what purpose. Include limitations to prevent misuse or future unauthorised use (Control, Privacy).

3. Access and Transparency

Communities must have full access to data collected about them. Agreements should provide straightforward methods for communities to view, retrieve, and understand how their data is used (Access).

4. Custody and Possession

Where possible, First Nations communities should be empowered to store and manage their own data. If stored elsewhere, terms must outline clear pathways for data to be returned or accessed locally, and define who holds digital/physical custody (Possession).

5. Cultural and Personal Privacy

Respect cultural sensitivities and uphold community protocols. Culturally sensitive, sacred, or secret information must not be shared or reproduced without specific permission. Access should be restricted to authorised individuals only (Privacy).

6. Ownership and Intellectual Property Rights

Ownership of Indigenous data must remain with the relevant Indigenous individual or community. Agreements should include ICIP clauses that uphold these ownership rights and reinforce cultural authority (Control, Possession).

7. Attribution

Recognise the source of First Nations knowledge and ensure proper attribution in any research, publication, or data use. Include individuals, communities, language groups, or Traditional Owners where appropriate (Control).

8. Benefit Sharing

Include fair and transparent benefit-sharing mechanisms, especially where data may be used in commercial, academic, or policy contexts. Benefits could be financial, reputational, or in-kind. It may also involve ensuring the data is being collected for agreed mutual benefits (Control, Access).

9. Duration and Termination

Set clear timeframes for the data sharing arrangement, with provisions that allow Indigenous parties to review, renew, or terminate agreements based on changing circumstances (Control).

10. Dispute Resolution

Define culturally appropriate processes for resolving any disputes, including options for First Nations-led mediation or dispute resolution mechanisms (Control, Privacy).

Data is power, and without care, sharing it can undermine First Nations peoples' authority over their own knowledge. A strong data sharing agreement helps reduce that risk, ensuring First Nations peoples have a greater say in how their data is used, stored, and respected.

Our Role at Terri Janke and Company

At Terri Janke and Company, we support clients by specialising in drafting robust, culturally informed Data Sharing Agreements that reflect ICIP principles and align with national and international IDSov frameworks.

We work closely with clients to:

• Draft or review agreements

• Design governance structures

• Build culturally safe data practices

• Ensure outcomes are both legally sound and culturally respectful

Strong data governance is more than a legal requirement—it is an assertion of sovereignty, cultural integrity, and self-determination. Through culturally grounded agreements, we keep Indigenous data strong and ensure First Nations communities retain control of their knowledge, stories, and futures.