Red Tide Indigenous Climate Action Summit

As a small not-for-profit organization, we’re always racing to keep up with our own ideas. A new program requires strategic planning and fund sourcing before the details of the project can be finalized.

It sometimes feels like trying to assemble a thousand-piece puzzle without knowing what the overall picture is, but this is when the most exciting ideas and challenges come to light.

Currently the whole PPP team is planning a multi-year policy and curriculum building project focused on Indigenous experiences of climate change. Using innovative research technology, we will be collecting personal experiences of climate change from Indigenous individuals and communities across the Pacific. These narratives will be bundled and analyzed by the contributors themselves to create a large-scale picture of climate change in Indigenous communities.

While planning this data collection process we needed to address what has recently become a high-profile issue in Canada. How can we collect Indigenous knowledge and experiences while ensuring that only the participating communities and individuals have the legal rights and access to them?

This year in particular, cultural appropriation and cultural property theft have made headlines in mainstream media. In Canada, the editor of a well-known literary magazine called for an award for cultural appropriation. Internationally, the United Nations (UN) and World Intellectual Property Organization (WIPO) hosted a conference in Geneva on cultural property without consulting Canadian Indigenous groups.

While this visibility is novel, the theft of Indigenous property is obviously not a recent development. As American Indigenous scholars Angela R. Riley and Kristen A. Carpenter have discussed, what we now know as “cultural appropriation” is simply the continuation of the colonial process – taking from Indigenous groups for the consumption of colonizers. Despite being an age-old issue, it remains seemingly unsolved. Accordingly, the question across the world and in our office remains: how can the knowledge, experience, and creativity of Indigenous groups be protected from colonial exploitation and appropriation?

Internationally, groups like WIPO have proposed the application of intellectual property law (IP law) to cultural property issues. Trademark, copyright, and patent law are the three most commonly suggested IP tools. These have been used with some success by Indigenous communities. For example, the Cowichan First Nation has registered the trademark “Genuine Cowichan Approved” to separate authentic Coast Salish hand-knit sweaters from mass-manufactured counterfeits.

However, these laws were not built with cultural property and Indigenous ownership in mind. Built in limitations prevent them from meeting the needs of many Indigenous communities.

Trademarks, for example, prevent other manufacturers from using the “Genuine Cowichan Approved” label. Counterfeit sweaters will therefore be more easily recognizable. However, trademarks cannot actually prevent the exploitative use of Indigenous ideas or knowledge. For example, other clothing companies will still be able to produce sweaters using the techniques and patterns of the Cowichan Nation. They just cannot call them “Genuine Cowichan.”

Trademarks also fully adhere to and impose traditional settler understandings of ‘property’ and ‘ownership’ which do not reflect or accommodate the approaches of many Indigenous peoples who practice community ownership. Nations are not corporations—they are not legal persons—and some person must always own the rights to a trademark. When a trademark is used to certify community-owned knowledge, who should hold that title?

Patent laws as well are problematic. They grant the owner a bundle of exclusive rights, such as the right to produce, market, or sell a product. While the scope of patent law means it cannot protect Indigenous arts or creative works, hypothetically this law should be able to protect Indigenous knowledge, products, and discoveries from exploitation. For example, the Dene Nation’s spruce gum medicine has been stolen and internationally marketed by large cosmetic companies. In theory, such an invention should be protectable with patent law.

However, while utilizing patent law in this way may be more feasible for future inventions and discoveries by Indigenous peoples, the law contains limitations that prevent it from effectively protecting previous traditional/historical inventions, discoveries and designs. Firstly, patents registered in Canada only apply within Canadian borders. In order to protect an invention internationally, multiple international patents are necessary. As well, because of this, to rely on the system of patent law is to rely on a system that enforces borders that do not reflect the territorial boundaries of Indigenous nations.

As well, patent law in Canada has strict “novelty” requirements. The basic idea is that once an invention becomes available to be possessed by the public, no matter by what means, it cannot be patented. So, now that the Dene recipe for spruce gum medicine has become internationally known and available, under current patent law, the nation cannot patent the invention. Once made public, an individual has only a year to patent their invention before it becomes public property. This excludes traditional knowledge of Indigenous peoples that have been shared (or stolen) over time from being protected by patent law today.

Furthermore, patent law currently requires a detailed written documentation of the ‘invention’ for which a patent is being sought – essentially blue prints and instructions for the creation of the product or process. This embodies the colonial notion that only written history and knowledge is valuable, and leaves no room for the continuation and protection of oral culture.

Unlike patents, copyright law does protect artistic works including written stories, visual arts, performances, and music. Holders of a copyright have the sole right to produce or reproduce the copyrighted work, and have surrounding “moral rights” which prevent the distortion, or modification of the work in its reproduction. But what about those elements of a culture which do not fit neatly into the categories protected by copyright? What about the oral histories or ceremonies integral to many Indigenous communities? These are not written works or performances in the strict sense, and therefore are likely to fall through the cracks of a copyright system.

Copyrights are also limited in duration, lasting only the life of the author and a further 50 years after their death. With knowledge and designs held together by a First Nation, the desire is to protect these resources indefinitely for their continued enjoyment by future generations.

Thankfully, no one seems to be suggesting that IP law in its current form is a reasonable solution to issues of cultural appropriation. There are certainly ways in which said law can be altered and supplemented to better protect Indigenous knowledge, such as limited exceptions to novelty requirements in patent law, or accommodation of Indigenous community in definitions of “originality” in copyright law.

However, the larger question is whether mere alterations to an imposed, colonial legal system are an appropriate or effective response to the exploitation of Indigenous peoples. To address the theft and commoditization of Indigenous peoples through the standing system of IP law is to try to fix the issue of colonial imposition with the continued imposition of Anglo value and legal systems. To accept IP law as the solution is to accept traditional settler understandings of “property” and “ownership” as correct, and to continue to enforce these values on Indigenous peoples.

In its 14th call for action, the Truth and Reconciliation Commission acknowledges that “the preservation, revitalization, and strengthening of [Indigenous] cultures are best managed by [Indigenous] peoples and communities.” The Canadian government has a recognized fiduciary duty to consult Indigenous peoples in matters that affect them. However, at the international WIPO convention in Geneva this year, none of Canada’s representatives were from Indigenous communities.

So, what of our work here at PPP? We are dedicated to ensuring that the communities contributing to our research maintain substantive control over the information they volunteer. We will ensure each community is the safe keeper of their members’ stories, giving them exclusive control over the future use of the data.

We can only hope that national and international policies on cultural property begins to do the same.

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