Traditional Knowledge: Legal Protection at the Local, Provincial, National and International LevelMerle AlexanderTsimshian NationChair of the Aboriginal Practice Group – Boughton Law

Aboriginal lawyer from Kitasoo Xai’xais First Nation (Klemtu, BC)

Partner at Vancouver law firm, Chair Aboriginal Practice Group – 7 Aboriginal lawyers – largest in Canada

SD law –Aboriginal/ Environmental/Business

Indigenous Peoples Advocate – WIPO and CBD for over a decade

Outline

1. Introduction2. Traditional Knowledge Generally3. Protocols4. IP Options5. Sui Generis Options6. Questions?

Introduction

An Aboriginal lawyer from the Tsimshian community of Kitasoo Xai’xais on the mid–coast of British Columbia practicing sustainable development law.

Key area of my legal practice is the protection, preservation, and maintenance of traditional knowledge.

International: Represent Aboriginal Peoples organizations at Working Groups established under the CBD and WIPO.

National: Informal national Indigenous network.

Local: Develop traditional knowledge protocols for a variety of purposes – academic, natural resource companies and government to government relationships.

Traditional Knowledge Generally

Community level – hundreds of Aboriginal communities are attempting to preserve, maintain and protect their traditional knowledge for a wide variety of purposes.

Domestically: legal issues regarding traditional knowledge for academic research, Government–to–Government consultations and Aboriginal–Industry relationships are becoming increasingly important.

Internationally: at least 11 international treaty areas have substantive traditional knowledge–related components.

At all levels, there is no agreed definition. Some Indigenous Peoples are reluctant to accept the

term “traditional” as it implies something frozen in the past; static and unable to develop.

Traditional Knowledge Generally (cont’d)

My approach is an Aboriginal rights–based approach to traditional knowledge protection.

Based upon the Supreme Court of Canada comments: “to ensure the continuity of aboriginal practices, customs and traditions, a substantive aboriginal right will normally include the incidental right to teach such a practice, custom and tradition to a younger generation.”

In other words, each constitutionally–protected Aboriginal/treaty right is integrally linked to the traditional knowledge that ensures its continuation between generations.

Protocols

The development of a traditional knowledge protocol for clients arose from involvement in cultural heritage projects, traditional land use studies and a variety of academic contexts.

There was no precedent that took an Aboriginal–rights based approach.

Based on a variety of existing contract types drawing from privacy; administrative and Aboriginal law.

Developed over extensive consultations with Aboriginal leaders and community consultations

Need for a Template

No precedent = no minimal standard, no best practice.

Increases the likelihood that among Aboriginal groups their agreements will not contain minimum requirements to ensure that legal rights to ownership, prior informed consent, privacy and confidentiality are sufficiently protected.

A template intends to set an evolving better practice to be adapted to each First Nations’ context.

It cannot be adopted without community consultation and mindful reflection on the specific First Nation’s governance of their traditional knowledge.

Highlights of the Protocol

Acknowledgement of prior rights and right of self–determination;

Inseparable nature of traditional knowledge from Aboriginal right;

First Nation’s participatory rights; Right to prior informed consent throughout the

term of the project and ongoing basis; General duty of confidentiality; Specific provisions dealing with Sacred sites,

medicines and other sensitive matters; and Non–derogation of Aboriginal rights, titles, and

interests.

IP Options

There are a variety of contemporary intellectual property (“IP”) tools at an Aboriginal group’s disposal including trade secrets, trademarks, copyright and moral rights.

TRADE SECRETS Easy – don’t tell anyone the secret ingredient, sacred

place, spiritual name, ceremonial meaning. Often dealt with by strict confidentiality arrangements. Requires a great deal of control and management by

the Aboriginal group to ensure that your own people do not disclose.

If you don’t keep it secret, the best confidentiality agreement is unenforceable. You set the standard of secrecy.

IP Options

TRADEMARK Official marks under section 9 of the

trademark act protects names, symbols and images of “public authorities”.

Generally, you must prove you are a government or controlled by a government.

Use of the protection ensures that names like “First Nations Summit”, “Kaska”, “Nisga’a Lisims Government” and Snuneymuxw – petroglyphs.

Trademark on steroids.

Copyright

Very limited protection from an Aboriginal collective ownership perspective.

Copyright focuses on the individual in statute and common law.

Many First Nations and Aboriginal groups have their logos designed by Aboriginal artists.

The artist has a common law copyright, not the First Nation.

The Aboriginal group must get an assignment agreement transfer the artist copyright back to its proper owner.

Sui Generis Options

Locally, domestically and internationally there are many proposals to develop stand alone legislation and international treaties to develop sui generis solutions to the failure of IP.

WIPO: developed Draft Guidelines for the Protection of Traditional Knowledge.

Suggestions for Aboriginal Names legislations. NZ – amendments to trademark legislation to allow

for review of offensive trademarks and the Maori Made symbol.

Locally – many community’s are exploring development of self government based laws protecting cultural heritage.

Questions

Merle AlexanderBoughton Law

700-595 Burrard St.Vancouver BC, V7X

1S8+16046474145

malexander@boughton.ca