Traditional Knowledge, Cultural Property and Genetic Resources

It has long been an issue with Indigenous people living in Canada and around the world that our traditional knowledge, intellectual and cultural property and genetic resources are not protected and on many occasions have been misappropriated, misused and disrespected.

Do you recall the issue in the early 1980’s with the Nuu-chah-nulth when their blood samples were taken for a study on arthritis. Around 900 Nuu-chah-nulth provided samples to a genetic researcher from Oxford with their consent to use the blood to study arthritis. In reality, the samples were used by this researcher and others for many different things like HIV/AIDS, population genetics and studying the DNA to establish origins. (http://caj.ca/wpcontent/uploads/2010/mediamag/awards2005/(David%20Wiwchar,%20Sept.%2012,%202005)Blood2.pdf)

How many times have we seen other abuses? Age old songs of our people being recorded by museums or others who produced records or tapes and obtained a copyright on the collection of songs that did not belong to them. Or in the case of the Cowichan sweaters, in the latest incident, having the Bay produce sweaters that were “like” Cowichan sweaters for the Olympics. How many First Nations people have shared their knowledge on medicines or on animal behavior, water, wind, etc. only to have it appropriated and used without any credit to the person who shared it. There have been so many violations of indigenous wisdom, culture and genetics that they are too numerous to list but you get the idea from these examples.

The Federal Government claims sole jurisdiction for intellectual property, copyrights, trademarks and patents. Many of these laws are inappropriate for the kinds of protection that indigenous peoples need. For example, in Nuu-chah-nulth culture, a song can belong to a certain person or family and may have that ownership for say 60 years. That person can give that song outright to another person and they can have the ownership of that song for as long as they live. Copyright law only allows a copyright for 25 years to one person. If it is a “family” song, copyright law would not protect that song from being appropriated. Also 25 years is not long enough. Attempts to work with the Federal Government have not been fruitful in being able to provide protective mechanisms to indigenous people for their traditional ecological knowledge (TEK)(or whatever other term people use such as indigenous wisdom), cultural property and genetic resources.

Through treaty negotiations at the Hupacasath table as it then was, we tried to negotiate protective mechanisms but introducing a chapter called indigenous wisdom with a unique definition that would not infringe on federal powers and make it uniquely First Nations laws and values. No progress was made on this as the federal government refused to engage in new innovative ways to deal with what they considered Intellectual property.

At the international level, there is a specialized agency of the United Nations called the World Intellectual Property Organization (WIPO) It is dedicated to “developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest.”

WIPO was established by the WIPO Convention in 1967 with a mandate from its 184 Member States to ”promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations.”

Member States determine the strategic direction and activities of the Organization. They meet in the assemblies, committees and working groups that are the decision making bodies.

WIPO has been working on traditional knowledge of Indigenous peoples and state on their website at http://www.wipo.int/tk/en/ that: “Traditional knowledge (TK), genetic resources (GRs) and traditional cultural expressions (TCEs, or "expressions of folklore") are economic and cultural assets of indigenous and local communities and their countries. WIPO's work addresses the role that intellectual property (IP) principles and systems can play in protecting TK and TCEs from misappropriation, and in generating and equitably sharing benefits from their commercialization and the role of IP in access to and benefit-sharing in genetic resources.”

WIPO established a committee to deal with these issue at their General Assembly in October 2000 (document WO/GA/26/6). The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is working on an international legal instrument that will ensure effective protection of TEK, traditional cultural expressions (TCEs)/folklore and genetic resources.

The Committee is meeting this week in Geneva. The papers for the Committee and agenda can be found at http://www.wipo.int/meetings/en/details.jsp?meeting_id=22171

A delegation of indigenous peoples have in good faith been participating with expectations that there will be “respectful relationships and that their proposals will be deliberated and considered on their merits by member states.” The indigenous delegation sent out a report that a small group was set up by the Committee on Tuesday night to clean up the text on traditional knowledge. Expectations were this a grammatic exercise. This group became a draft group and eliminated indigenous proposals without full and fair deliberations. The Indigenous people at the Committee have made it clear to the committee the WIPO international legal instrument on Traditional knowledge, Traditional Cultural Expressions and Genetic Resources must contain the following six principles:

"1. A primary objective of the international legal instrument(s) must be to protect Indigenous Peoples’ rights and interests as the owners / holders of TK, TCEs, and GR.

2. The legal instrument(s) must affirm the universal protection of the rights of Indigenous Peoples and nothing in the instrument(s) can be construed as diminishing or extinguishing the rights Indigenous Peoples have now or may acquire in the future.

3. The international legal instrument(s) must comply with international norms by adopting the term ‘’Indigenous Peoples’’ which respects our lawful status and recognized rights.

4. The international legal instrument(s) must recognize the principle of free, prior and informed consent of Indigenous Peoples.

5. The international legal instrument(s) must not assert or otherwise infer that States or members of WIPO are holders of, or the beneficiaries from the utilization of, Indigenous Peoples’ TK, TCEs, and GRs.

6. In the international legal instrument(s), Indigenous Peoples must have the right to redress, including repatriation of, any of their TK, TCEs, and GRs taken or used without their free, prior and informed consent."

(Taken from the Statement of Indigenous People to the IGC 18 and signed by indigenous delegates on May 12, 2011)

It would seem that indigenous efforts internationally are being frustrated by Member States who have the vote while indigenous peoples are on the outside as usual. It was the same way with the Declaration on Indigenous Rights that it was States that adopted the final text with no votes for indigenous Nations. Had Indigenous Nations had a vote, there would be a stronger Declaration today.

Until Indigenous peoples are accorded the same status as Members, we will never be in control and will be subject to being “observers”, or “participants”. As indigenous people we invest a lot of time and energy into the development of international standards but the end results are never what they need to be. What is happening at the ICG committee further illustrates the way Indigenous Peoples are treated at the international level and this must change. Indigenous peoples must be part of delegations and be part of the decision making process in order to have our rights properly reflected and protected in international instruments. Only then will indigenous knowledge, cultural and intellectual property and genetic resources truly be protected from misappropriation, misuse and disrespect.

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