Intellectual Property Rights, Biodiversity and Indigenous knowledge: A Critical Analysis in the Canadian Context

by Howard Mann

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1.     INTRODUCTION

The Convention on Biological Diversity, more commonly referred to as the Biodiversity Convention, was completed in 1992 and entered into force in 1993.¹  Among the many features of the Convention are a series of provisions relating to indigenous peoples, their knowledge, and their role in protecting and supporting the conservation and sustainable use of biological resources.  The Convention, in this respect, made clear the view that the preservation of biodiversity required, in many ways, the preservation of cultural diversity and the respect for and inclusion of the diverse range of knowledge that could be brought forward by indigenous peoples.

The negotiation and inclusion of these provisions was one of the most controversial elements of the Convention process.  They have, since first appearing in draft form, generated a large international debate on the relationship between the knowledge held by indigenous peoples and its recognition and protection through intellectual property rights and laws.²

For the purposes of this paper, this knowledge is referred to as indigenous knowledge, or IK. Indigenous knowledge has different meanings to different people, or peoples.  No one definition has been universally endorsed or accepted by either Aboriginal or non-Aboriginal peoples in .  What is clear, however, is that indigenous knowledge as a concept concerns information, understanding and knowledge that reflects symbiotic relationships between individuals, communities, generations, the physical environment and other living creatures, and the spiritual relationships of a people.  IK evolves as ecosystem and other factors change, but remains grounded in the more enduring aspects of identity, culture, generations and spirituality.

The key area within this very broad definitional context that will be focused on in this report is the indigenous knowledge relating to the quality and condition of the environment, and the use or conservation of biodiversity.  This limitation does not mean that the critical holistic nature of indigenous knowledge is not recognized for purposes of this study.  Rather, the study focuses on that knowledge which is most relevant in its main point of expression to the conservation and sustainable use issues that underlie the Biodiversity Convention.

This approach also highlights a critical issue: the substance of IK is not the same for each Native community.  To the extent IK is dependent on, or variable with the local environment and local living resources, the substance will be specific to the local area of the knowledge holders.  In a biodiversity context, this places an important emphasis on ensuring the contribution of the appropriate knowledge holders.

The goal of this paper is to go outside the precise terms and frame of reference of the international debate, and undertake a critical review of the relationship between intellectual property rights, indigenous knowledge and the protection and conservation of biodiversity in .  To do this, the paper will look first at what the international debate is about: the provisions contained in the Biodiversity Convention, related work in the United Nations Human Rights Committee, the role of the 1994 World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights, and work in the Organization of American States in this area.

Having set the stage of the international debate, the paper then moves to a consideration of Canadian IPR laws.  A brief introduction and categorization of these laws is followed by a statute and common law centred view of their relationship to indigenous knowledge.  This orientation takes the statutes (or common law) as the starting point: what are the existing opportunities and barriers to the use of IPR law in in relation to IK?

The subsequent section will reverse this approach.  It will take indigenous knowledge as the starting point and ask what type of protection and respect is being sought by Aboriginal peoples in , and how does this fit with or require alterations in addition to IPR law as it exists today.  This section puts a greater premium on an understanding of these objectives, and an ability to place them into the context of the existing goals and framework of IPRs in and globally.  The goal here is to place them into a context in which the best means to consider them can be systematically identified and developed.

Two concerns underlie a great deal of what follows.  The first is that much of what is known today as intellectual property rights or laws have been derived from a commercial or commercialization context that is inconsistent with or otherwise not applicable to indigenous knowledge and its holders.

The second issue flows in many ways from the first.  This is the use of the terms and language from the existing superstructure of intellectual property law to identify what deserves or does not deserve to be called a right.  This creates, it is submitted, the reverse approach to what is likely to be needed to overcome the rhetoric that has become the hallmark of the debate.  In determining whether indigenous knowledge is “deserving” of being called intellectual property or of having intellectual property rights protection through reference to the existing legal structures, we in reality avoid the preliminary, but critical, policy question of whether it is deserving of protection.  Only after answering this question in the affirmative in a policy context, and then identifying what type of protections are desirable, can the next step of applying existing laws towards this end, or developing new laws, be successfully tackled.  It is hoped that the structure of this paper will help highlight this difficulty, and assist in identifying a productive way forward.

The final section of this paper will try to synthesize the author’s understanding of the objectives for the protection of IK, where these can be accommodated by existing IPRs or by other types of laws, and where new legislation may be required.  An effort will also be made to relate this to necessary international approaches in addition to potential domestic approaches.

An intriguing quote from a recent book on Canadian intellectual property law provides an appropriate conclusion to this introduction:

In a general sense, intellectual property law is about those legal principles that regulate the exploitation of ideas, creations or information.  Ironically, of the three categories, that of ideas is the most problematic for the intellectual property lawyers.³

If ideas constitute a serious problem for intellectual property law, what then of indigenous knowledge with its confluence of what many IP lawyers would call ideas, culture, information and knowledge?  How can this fit with the superstructure of intellectual property law that has been developed to give enforceability specifically to the rights articulated almost exclusively to support western commercial practices?