TRC and UNDRIP as a Historic Milestone

In this year’s National Day for Truth and Reconciliation (TRC), ABS Canada reflects on the critical intersection of Reconciliation, Intellectual Property and Indigenous Knowledge. We pay homage to TRC and all who share its vision. TRC’s recommendation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the framework for Reconciliation, along with Canada’s adoption of UNDRIP, remain both a starting point and milestone upon which generations of Indigenous Peoples and governments of Canada will continue to build. As all orders of government continue to grapple with aspects of the details of UNDRIP implementation, we emphasize Article 31 of UNDRIP.

UNDRIP Article 31: Protecting Indigenous Knowledge and Cultural Heritage

Article 31 reads:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Access and Benefit Sharing Canada logo.

This Declaration attempts to articulate the ubiquitous and symbiotic nature of knowledge and culture in their holistic essence as key to Indigenous worldviews of phenomena. It also recognizes the epistemic integrity of Indigenous Knowledge Systems. The language of Article 31 endeavours to draw nuanced parallels between Indigenous Knowledge Systems, western science, and colonial intellectual property, hence the reference to “Indigenous intellectual property”. As well, it also reflects the colonial branching of the frameworks of knowledge production to “cultural heritage, traditional knowledge and traditional cultural expressions”.

UNDRIP Article 31 presents a complex intersection of dilemmas as well as opportunities. The reference to Indigenous intellectual property speaks to the equity in knowledge governance, against the presumed default which only reifies settler or colonial intellectual property in their statutory and common law renditions. That status quo, as a historical matter, has remained insensitive to Indigenous knowledge systems. For these reasons, Canada’s statutory intellectual property – pursuant to laws relating to patents, copyright, trademark and associated regimes including geographical indications and plant breeders’ rights – relegate Indigenous knowledge to the margins. Suggestions for revising these laws to be sensitive to Indigenous interests and inclusion have remained elusive due to lack of political will. As well, policy support for Indigenous knowledge through, for example, Canada’s intellectual property strategy, is conceptually tied to the apron strings of the colonial intellectual property regime as a filtration pathway for the valorization of Indigenous Peoples’ contribution to innovation.

Bimodal Pathways for Indigenous Knowledge in Intellectual Property

Thus, the current efforts by Canada at the federal and some provincial and territorial levels to implement UNDRIP must necessarily follow bimodal pathways as evident in the approach adopted by the Declaration and endorsed by its implementing legislation. The first plank of the bipod is one that recognizes the integrity of Indigenous knowledge production and the capacity of Indigenous knowledge holders to equitably participate within the existing, or better adjusted parameters of the existing, intellectual property order. That will require an intentional policy of reviewing Canada’s intellectual property architecture – from its substantive, statutory and common law frameworks to its institutional, professional and policy designs and practices – to ensure greater sensitivity to Indigenous knowledge producers and promote inclusion and equity.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The second plank in the bipod is perhaps the most sensitive. It is with respect to the impliedly inherent right of Indigenous Peoples over the various modes and manifestations of their knowledge systems and cultural heritage. In this frame, Indigenous knowledge is integral to Indigenous Peoples’ right to self-determination. A critical aspect of that sacrosanct right is Indigenous “control” or jurisdiction over their knowledge governance. Such jurisdiction transcends colonial or settler forms of intellectual property under the first of the bimodal plank. Under this framework, Canada’s implementation of UNDRIP presents a clear opportunity and test case of how to best renegotiate knowledge governance against the constitutional vesting of primary jurisdiction over intellectual property on the federal government. As well, it also challenges extant jurisprudence on Aboriginal rights, which limits them to pre-existing and pre-contact mantra with no regard to epistemic continuity and evolution inherent in Indigenous knowledge.

While replete with mixed signals at various levels, Canada’s emerging approach to UNDRIP implementation reflects that bimodal approach. It includes a proposed overhaul of statutory intellectual property as well as political engagements to advance Indigenous jurisdiction over their knowledge systems. While governments prefer political engagements, which they perceive as more amenable to Reconciliation, they must also recognize that Indigenous Peoples will inevitably fall back to the judiciary.  Political solutions may attempt to mould rights, but judicial interventions are often helpful in cementing them.

Skepticism over Canada’s Implementation of UNDRIP

Meanwhile, despite Canada’s bold but delicate UNDRIP move, Indigenous Peoples have sufficient ground for skepticism. UNDRIP is an international regime, and Canada’s willingness to implement it at a domestic level reflects the influence of international systems on national regimes. However, it is troubling that Canada has failed to ratify the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya) to the Convention on Biological Diversity, twelve years after it came into force. Equally concerning is Canada’s lukewarm attitude to the 2024 WIPO Treaty on Intellectual Property Genetic Resources and Associated Traditional Knowledge (GRATK Treaty) and the ongoing work of the WIPO Special Committee charged with exploring modalities for the effective protection of Indigenous knowledge (WIPO IGC).

UNDRIP Article 31 presents a complex intersection of dilemmas as well as opportunities.

At the IGC, Canada (unlike Australia and New Zealand) has yet to optimally leverage its negotiating approach to reflect its national interest in Indigenous knowledge or its trail-blazing domestic implementation of UNDRIP. Nagoya, the GRATK Treaty, and the ongoing work at WIPO relating to Indigenous knowledge cannot be dissociated from the UNDRIP implementation project. Canada’s commitment to UNDRIP must reflect on its international posturing at the relevant fora. The last point is important if Canada is to serve as a promising model of sustaining Indigenous knowledge systems as an integral and crucial aspect of national Reconciliation, in keeping with the TRC’s vision for UNDRIP.

The project of ensuring effective Indigenous Peoples’ jurisdiction over their knowledge governance, as distinct from Indigenous intellectual property, takes on greater urgency with the emergence of new technologies. The most notable example is AI and its asphyxiating ubiquity as a game changer over Indigenous knowledge. That consideration has implication over the progress made so far over Indigenous data sovereignty. As well, it is an import consideration given the UNDRIP – a document negotiated in the 1980s – did not pre-empt AI and current barrage of transformative technologies. As Canada negotiates or re-negotiates the political dimensions of Indigenous knowledge systems pursuant to UNDRIP, it must also recognize the existential threat as well as potential opportunity of new technologies.