Winner of the 2019 IP Law Student Essay Competition

  • May 14, 2019

Legalism, Indigenous Cultural Art & Knowledge, and the Three Rs: Rejecting, Renovating, and Re-Imagining Law

Isabelle Lefroy, Allard School of Law University of British Columbia

INTRODUCTION

From the Tsartlip Nation on W̱SÁNEĆ territory, Coast Salish Master Carver Temoseng, or Charles Elliott, is a celebrated artist with works displayed in many prominent locations across British Columbia. He has personally experienced appropriation of his work multiple times. He has seen tourists and locals walking around downtown Victoria in t-shirts displaying one of his own unique designs. Temoseng has never approved reproduction and printing of his designs onto clothing. He makes carvings out of massive pieces of cedar, which are housed in public displays across the province including on BC Ferries and at the University of Victoria. While Temoseng is aware of and frustrated by the appropriation of his pieces, he does not feel that there is much he can do to stop it.[1]

In Canada, there are no legal instruments specifically for Indigenous artists and communities to protect their art and knowledge from widespread appropriation.[2] The unregulated appropriation of art and knowledge is a perpetuation of colonial attempts to take Indigenous land and culture for the colonizers’ interests and benefit. There have been international and domestic calls to protect Indigenous knowledge from appropriation, but the Canadian government has done nothing.[3] This situation prompts the following questions: Why is Indigenous knowledge vulnerable to appropriation in the first place? Why hasn’t the Canadian government acted? Is rights discourse a productive arena to pursue protection of Indigenous art and knowledge?

The Canadian government, judiciary, legislation and policies have a long and controversial history regarding the Indigenous inhabitants within Canada’s borders. The Canadian government has attempted to control Indigenous peoples and their cultures since Britain passed on that cumbersome responsibility.[4] The government is responsible for much of the cultural erosion, social disruption, and economic hardship that is present in many Indigenous communities.[5] As such, many scholars see it incumbent upon the Canadian government to create some form of protection for Indigenous knowledge, presumably in the form of rights.[6]

In this paper, I want to examine this call for the creation of rights to protect Indigenous knowledges against arguments made by a selection of interdisciplinary theorists. I want to explore the following questions: what are the theoretical underpinnings of rights discourse? Should legalism (the tendency to resort to the use of law to accomplish social justice issues) be avoided? Why should the Canadian government create rights to protect Indigenous knowledges? What sort of engagement can we expect from the colonial government legislating rights? Is legalism, and specifically rights discourse, a productive place to craft workable solutions to the problem of appropriation of indigenous art and knowledge?

First, I will contextualize the appropriation of Indigenous knowledge in Canada. I will explain why the Canadian intellectual property regime is inadequate as an instrument to protect Indigenous knowledges, discuss the ongoing oppression of Indigenous peoples by the settler-state, and examine the harmfulness of unethical and unreflective research. Next, I will examine Taiaiake Alfred’s “‘Sovereignty’ – An Inappropriate Concept”[7] and Wendy Brown and Janet Halley’s Introduction to Left Legalism: Left Critique,[8] two texts that reject the use of legalism. I will draw from their critiques to discuss the limitations of pursuing rights in the context of Indigenous knowledge protection. Next, I will examine the critical and careful use of legalism as an instrument in Mariana Valverde’s “Spectres of Foucault in Law and Society Scholarship”[9] and Michael M’Gonigle’s forthcoming article “Logics as Law: Rethinking Social Regulation in a Full Planet.”[10] Taking cues from these theorists, I will explore why the use of legalism might be productive in protecting Indigenous knowledge, if wielded correctly. Finally, I will examine two texts that offer something completely different from legalism: Gordon Christie’s “Indigeneity and Sovereignty in Canada’s Far North: The Arctic and Inuit Sovereignty”[11] and Donna Haraway’s “Staying with the Trouble: Anthropocene, Capitalocene, Cthulucene.”[12] I will draw from these texts as a site of inspiration for my own legal imagining. 

PART I. COLONIAL CONTEXT

Since the usefulness of creating rights to protect Indigenous knowledge is the focus of this paper, the ongoing appropriation of Indigenous knowledge must be contextualized. First, I will explain why current Canadian intellectual property rights are inadequate for the protection of Indigenous knowledge. I will then explain why Indigenous knowledge is at risk of being appropriated in the first place. Next, I will offer a critique of scholars who have pointed out the lack of fit between Indigenous knowledge and the Canadian rights regime and have called for new forms of protection, but have failed to realize their own complicity in the systems of oppression that appropriate Indigenous knowledge and culture.

Indigenous knowledge is often termed ‘traditional knowledge,’ and includes, among many other things, medicine, visual art, songs, stories, and environmental knowledge.[13] The term ‘traditional knowledge’ itself is a good example of Western misunderstanding of Indigenous knowledge, and reveals an impulse to label anything derived from Indigenous nations as ‘traditional’ or ‘ancient.’[14] In contrast with this misconception, it is appropriated Indigenous medicinal and plant knowledge that keeps pharmaceutical companies rich, and Indigenous conservation methods that are helping scientists working to reduce environmental degradation.[15]

As many scholars and policymakers have pointed out, there is a lack of fit between Canadian intellectual property rights and Indigenous knowledge and cultural expressions.[16] For the most part, Canadian intellectual property laws are rooted in a utilitarian theory or economic understanding of rights.[17] Those with intellectual property rights over a product have exclusive use over the goods and services protected. They are able to reap any profit from the sale of their goods and services, and in the domain of patents, for example, are ensured exclusive monopoly over their good or service. This understanding of rights was confirmed by the Supreme Court of Canada in ThĂ©berge v. Galerie D’Art du Petit Champlain Inc.[18] The ThĂ©berge principle holds that copyright law, and by extension, all intellectual property rights, are utilitarian. The purpose of copyright law is to promote public interests by incentivizing the creation and dissemination of creative works. The creator’s rights must be balanced by their limited nature.[19]

While economic rights over goods and services may be useful to some Indigenous individuals or communities, they run the risk of commoditizing knowledge and culture. Furthermore, there are many restrictions and requirements that bar Indigenous artists and knowledge holders from protecting their work using Canadian intellectual property rights. For example, in copyright law, protectable knowledge needs to be “original” and “fixed,” thus leaving vulnerable knowledge held in orally transmitted stories. Similarly, copyright protection expires fifty years after the author dies.[20] This tenet of copyright law appears harmless, unless the “author” died thousands of years ago or is not ascertainable. If certain knowledge is sacred and not to be shared with everyone, Indigenous communities and artists once again find that their knowledge is not eligible for protection under Canadian intellectual property laws. It is important to note that this is not an exhaustive list of the many bars to protecting Indigenous knowledge under Canadian property law, but that is beyond the scope of this paper. This paper is meant to contextualize these problems in the broader picture of colonialism and ongoing appropriation under a colonial government.

It is important to recognize that there are many flexibilities and promising areas in the current intellectual property system that might be useful when thinking about potential solutions. For example, moral rights, which have a relatively small capacity in Canada[21] in comparison to the moral rights regimes in place in France, hold potential for Indigenous artists and knowledge holders.[22] Moral rights protect the creators of copyrighted works, and last for the same amount of time as copyright. They include the right of attribution, the right to publish anonymously or pseudonymously, and the right to the integrity of the work.[23] The philosophies underpinning moral rights stem from the French Revolution, wherein the state was divorced from the Church.[24] Moral rights in France, or droit d’auteur,[25] have an almost spiritual aspect to them, protecting the moral integrity of the author.[26] They are much broader than copyright, and stem from John Locke’s theory that man has a natural right to his intellectual creations.[27] In the Canadian context, moral rights have less capacity, but are still present. For example, Snow v. The Eaton Centre Ltd. protected the moral integrity of the author against the use of his art in an unauthorized public display. The remedy was granted on the grounds that the modification of the artist’s work would damage his reputation. [28] The concept of an author’s moral right to integrity could be adapted to a community or a culture’s right to integrity, as we shall see later in the paper.[29]

Another area of potential flexibility within existing Canadian law is the requirement of fixation. Unlike the U.S. Copyright Act,[30] the Canadian Copyright Act does not actually have an official “fixation” requirement, which, when required, mandates that material be in fixed form – written down, recorded, etc. Canadian judges have interpreted Canada’s Copyright Act as if it requires fixation.[31] For example, a nation’s oral creation story could be protected under the Copyright Act, but because of past judicial interpretation of the necessity of fixed form, it is unlikely that a Canadian judge would find that the oral story qualified for protection. David Vaver, a prominent scholar of intellectual property law, argues that despite precedents pertaining to this issue, fixation does not have to be a requirement of Canadian law.[32] However, Canada’s adoption of international trade agreements, like the World Trade Organization’s Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, limits this potential flexibility. Article 9.2 of the TRIPS agreement requires works to have fixed form in order to qualify for protection. The provision is imported directly from the Copyright Act in the United States, another country facing the problem of Indigenous knowledge appropriation.[33] Based off of the potential flexibility in moral rights and the fixation requirement, it should be clear that it is possible to find flexibility within the existing intellectual property system.

As mentioned above, many scholars have demonstrated that there is a need for protection of Indigenous knowledge. Many of these scholars, however, have failed to discuss why Indigenous knowledge needs protecting. To do so would be to implicate themselves in the ongoing existence of colonial structures governing the lives of Indigenous peoples and the settler society that continues to appropriate Indigenous knowledge and occupy their lands.[34] It is much more comfortable not to do so. However, Leanne Simpson, a Mississauga Nishnaabeg scholar, argues that it is crucial, especially for settler scholars, to indicate why Indigenous knowledge is at risk of being appropriated.[35] Indigenous knowledges and cultures are under constant assault from continued exoticization by both settler society and tourists. Furthermore, the ongoing occupation of unceded territories and erasure of cultures removes tools with which Indigenous knowledge and culture is practiced and safeguarded for future generations. Therefore, Indigenous knowledge and culture is at risk of being appropriated while tools to protect the knowledges are occupied by settlers.[36] For example, if certain ceremonies must be practiced on particular areas of land, but that land is someone else’s private property, then the knowledge is at risk of being forgotten. This double assault of Indigenous culture and knowledge must be identified so that in turn, the assault can be stopped.

Another crucial element contributing to the problem is the role of researchers who collect, compile, translate, and distribute Indigenous knowledge. Leanne Simpson writes that researchers who remove Indigenous knowledge from its roots for the benefit of settler scholars or pharmaceutical companies are participating in the ongoing oppression and dispossession of Indigenous peoples.[37] Researchers are under no obligation to credit the knowledge to the communities and individuals from whence it came. Often, when researchers do present Indigenous knowledge as Indigenous knowledge, Western science and social science is privileged over Indigenous knowledge in an effort to appeal to academics who give more authority to Western knowledge. For example, Simpson points out that the journal Ecological Applications dedicated a special feature on the topic of “traditional ecological knowledge” in 2000.[38] Most of the eight papers published were written by non-Indigenous people advocating that ecologists should consider Indigenous knowledge as valid and useful. While this may seem harmless and may even be construed as a compliment, it should instead be considered as another assault on Indigenous peoples. Indigenous knowledge is not an “untapped resource” for settler scholars to use for their own purposes without consent.[39] The taking of Indigenous knowledge is just another manifestation of the ongoing colonization and attempted genocide of Indigenous peoples.

Furthermore, researchers often make Indigenous knowledge systems more publishable and palatable to other academics by ignoring underlying issues of colonial injustices or removing spiritual aspects from elements of Indigenous knowledge. Simpson notes that editors of journals often remove references to colonialism from her manuscripts because they are “too off-topic.”[40] As Simpson eloquently writes, non-Indigenous researchers “sanitize Indigenous knowledge of the ugliness of colonization and injustice, so scientists can comfortably engage with the knowledge but not the people who own and live that knowledge.”[41] Depoliticizing Indigenous knowledge allows researchers to disregard their participation in the ongoing colonization of Indigenous peoples. Disconnecting Indigenous knowledge from the experience of colonial oppression perpetuates the researcher/researched and colonizer/colonized relationship.

This section of the paper has attempted to contextualize the appropriation of knowledge. I have pointed out the forces that must be resisted to protect Indigenous knowledge: ongoing commoditizing of Indigenous culture, persistent oppression of Indigenous peoples by the settler-state, and unethical and unreflective research practices conducted by researchers.

PART II: REJECTING LEGALISM

The rights discourse is the main venue where social justice projects are currently being carried out.[42] In this section of the paper, I will examine Wendy Brown, Janet Halley, and Taiaiake Alfred’s arguments against legalism as a means of carrying out justice projects.[43] I will then relate their critiques of legalism to Indigenous knowledge appropriation, and discuss the potential usefulness (or lack thereof) of the creation of rights to protect knowledge.

Brown and Halley, in their introduction to their book, Left Legalism: Left Critique, argue that law reform is not the only way forward.[44] They ask, quite strikingly, whether certain legal projects would “seem liberatory…if the acid of critical theory had a chance to work on them?”[45] Brown and Halley argue left critique is often discounted as elitist, offensive, and/or too abstract, among other things.[46] This “prohibitive dicta” precludes the possibility of left critique and leftist projects becoming normative.[47] Instead, left legalism takes the place of left critique, flattening enriching perspectives that may illuminate new possibilities and “that which is hidden.”[48] Halley and Brown argue that left legalism is a form through which regulatory power is exercised.[49] They believe this form of social regulation should be scrutinized carefully before being taken up.

If one sets store by Halley and Brown’s critique, the pursuit of rights to protect Indigenous knowledge will not be “a monolithic installment of justice.”[50] Rather, it will narrow the scope of redress for Indigenous individuals and communities seeking to stop the appropriation of their culture. It will flatten perspectives from different communities and pose exclusionary and colonial questions like “who qualifies for this protection?” Halley and Brown are more interested in interrogating what social powers create the dichotomy of qualification or non-qualification through identity.[51] To use Halley and Brown’s frame of reference, just as the institution of marriage narrows how people envision their adult selves intimately, in relationships, and as parents,[52] cultural property rights would limit how Indigenous artists/knowledge holders envision/create/value their art/knowledge. For example, artists would be hampered by questions of whether their particular form expression met fixation (or some other) requirements. When thinking about creating rights to protect Indigenous knowledge, we must remember the limitations of legalism.

In his work, “‘Sovereignty’ – An Inappropriate Concept,” Alfred rejects pursuing sovereignty, which he claims is incompatible with “traditional Indigenous notions of power.”[53] He argues that sovereignty is based on undesirable necessities of statehood: coercive force and control of territory, and should not be a goal that Indigenous communities should strive for.[54] Alfred focuses his critique on land claims, or the pursuit of a right to land through proving title. He asserts that to engage in the land claims process with the federal government is to accept the “fiction of state sovereignty,” which he claims is founded on unbalanced approach to justice. In land claim processes, the state structures the relationship between community and government and dictates the terms of the negotiations. For Alfred, a land claim can only achieve self-administration, not real “sovereignty” as characterized by nation-states.[55] He states, “…the struggle for justice would be better served by undermining the myth of state sovereignty than by carving out a small and dependent space for Indigenous peoples within it.”[56] In other words, Alfred believes it would be better to reveal the unjust foundations of colonial law rather than to strive for absorption into that same colonial framework. Instead of focusing on the advancement of “Aboriginal rights” that will be diminished by legal parameters, Alfred advocates for the taking up of responsibilities. Alfred argues that Indigenous philosophies of governance are grounded in stewardship principles – the idea that humans have responsibilities to land, not rights to land through title. Alfred encourages bypassing state systems and looking elsewhere for justice.

Many people, including myself, are hesitant or outright reject the idea of using a colonial framework to address problems caused by colonialism. As Audre Lorde famously wrote, “using the master’s tools will never dismantle the master’s house.”[57] Canadian laws are ultimately there to hold up the Canadian state, the existence of which many Indigenous peoples and their allies are struggling against. As noted above, the Canadian government has a long history of attempts to destroy Indigenous land bases, languages and culture, and is consequently regarded with deep distrust by some Indigenous peoples. The Indian Act is the main provision that considers Indigenous peoples in Canada, and provides precisely the sort of ‘protection’ to Indigenous peoples that one would expect from a 150 year old document written by colonialists.[58] The infamous White Paper of 1969, which recommended assimilating Indigenous peoples into mainstream Canadian culture, characterizes one of the attempts by the government to reform laws pertaining to Indigenous peoples.[59] Many Indigenous nations felt that their relationships with the British Crown were founded in a nation-to-nation understanding, a crucial distinction from a relationship with the state holding Indigenous groups hostage within its borders, legislating away their lands and recognition as separate peoples.[60] Consequently, the Canadian government does not have a good track record in terms of creating rights for Indigenous peoples. As John Borrows notes, the rights provided by the Indian Act amount to absurdities such as beekeeping and destruction of noxious weeds, and do not provide an acceptable base upon which to build Indigenous self-determination.[61]

Canadian courts have also contributed to the Canadian government’s bad track record in terms of rights for Indigenous peoples. For example, in developing “Aboriginal title,” the courts are trying to reconcile what may not be reconcilable: pre-existing Indigenous nations with the Crown’s subsequent assertion of sovereignty.[62] The SCC has built the Crown’s claim to Canada on a rickety foundation. In Delgamuukw v. British Columbia, the Court slates Aboriginal title below Crown sovereignty, seemingly applying the philosophy underpinning the doctrine of discovery.[63] The doctrine of discovery holds that when European nations ‘discovered’ foreign lands, they gained title and sovereignty over that land regardless of its pre-existing inhabitants.[64] The doctrine of discovery derives from the assumption that the land was empty, or terra nullius, at the time of discovery, a notion that the Royal Commission on Aboriginal Peoples has declared “morally, politically, and factually wrong.”[65] The SCC has more recently found that “the doctrine of terra nullius… never applied here,” despite their continued reliance on it in application of the law.[66] These conflicting narratives manifest themselves intermittently in common law, exhibiting the SCC’s simultaneous rejection and espousal of the belief “that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.”[67] The interplay of these narratives is problematic and needs to be examined closely. The Court’s vacillating position with regards to Aboriginal rights undermines the usefulness of rights discourse.

Considering Brown, Halley and Alfred’s critiques of rights alongside the problematic application of Aboriginal rights in Canada, the creation of new rights to protect Indigenous knowledge does not seem particularly useful or promising. One of the key problems I would expect from the creation of rights protecting Indigenous knowledge is the problem of identifying “Indigenous” knowledge, as alluded to earlier.[68] For example, the creation of rights that protect visual art raises a lot of practical questions. For example, would a design created by a Coast Salish artist and put on a t-shirt qualify for protection? Does the artist need to physically create the manifestation of each piece in order for it to be considered “authentic” Indigenous knowledge? Is there a threshold? For example, would carved silver rings qualify for protection but the t-shirt, printed at a non-Indigenous-owned manufacturing company, be disqualified? The production and sale of t-shirts printed with unique designs could be a large source of revenue for Indigenous artists, especially in tourist destinations like Vancouver. Should the reprinting of a design be offered the same amount of protection as a carved bentwood box?

The creation of laws protecting specifically Indigenous art and knowledge raises further difficult questions that are undergirded with colonial philosophies. For example, how would one distinguish Indigenous artists from non-Indigenous artists? Surely, an artist would not have to prove his or her Indigenous ancestry to qualify for protection. That idea smacks of identity debates based on race like Indian “status” and band membership conflicts. Colonialism and its progeny once again rear their ugly heads.

Alfred’s critique of legalism suggests that Indigenous peoples should be focusing on responsibilities, not rights. In the context of Indigenous knowledge protection, Alfred’s concept of responsibilities translates well. Instead of pursuing rights that protect Indigenous knowledge that may reinscribe harmful colonial identifications, perhaps communities and knowledge holders should focus on revitalizing community practices that protect knowledge. For example, Cheryl Bryce, a member of the Lekwungen community and Lands Manager for the Songhees First Nation, practices her own responsibilities by reintroducing the harvest of kwetlal (or camas) around Victoria on both private and public lands.[69] Up until about 150 years ago, the bulb of kwetlal was a main starch food for the people that lived in what is now Victoria. Cheryl Bryce’s female ancestors owned and managed the kwetlal fields that provided the fertile soil that was so appealing to settlers.[70] Her cultural knowledge is intrinsically protected and practiced by her harvesting of kwetlal. In an interesting wrinkle, her practice of her responsibilities is seen as illegal by the state.[71] For Alfred and Cheryl Bryce, the question isn’t “how can we make her practice legal?” but rather, “which law gets the job done?” Spaces like these must be found in which to practice responsibilities, and as a settler, I must help make room for these spaces by problematizing western laws, in particular with regards to knowledge protection. For Alfred and Cheryl Bryce, knowledge protection requires practice and responsibilities, not rights.

It must be mentioned that revitalizing community responsibilities is not a fix-all for the problem of Indigenous knowledge appropriation. The misappropriation Coast Salish designs being printed on t-shirts and sold to unwitting tourists cannot be prevented without engaging in some way with existing legal mechanisms, which is why Canadian law cannot be entirely excluded as a possibility for recourse.

PART III: RENOVATING LEGALISM

Rights discourse has been both an aid and a liability for Indigenous peoples in Canada.[72] Significant improvements in so-called “Aboriginal rights” have been made. For example, the creation of Section 35 (1) of the Constitution Act, 1982[73] in particular marked a seeming departure from the assimilative oppression of Indigenous peoples up to that point. Section 35 (1) recognized and affirmed “existing Aboriginal and Treaty Rights of the Aboriginal Peoples of Canada.”[74] On one hand, section 35 (1) prevents Canada from unilaterally extinguishing Aboriginal rights. However, it also facilitates the Crown’s ability to justifiably infringe Aboriginal and treaty rights. Given legalism’s inconsistent and vacillating position as both a help and hindrance to Indigenous peoples, the use of legalism as a theoretical basis for a justice project must be careful and critical. In this section, I will examine two theorists’ orientations to law and use their insights to reflect on the potential for legalism to protect Indigenous knowledge. In his forthcoming article “Logics as Law: Rethinking Social Regulation in a Full Planet, That Is, Green(ing) Legal Theory in the Animacene,” Michael M’Gonigle prompts us to rethink our conceptions of what law means.[75] Similarly, Mariana Valverde in “Spectres of Foucault in Law & Society Scholarship” asks academics to remain critical of their disciplines in order to reconfigure what is possible within their fields.[76]

In his forthcoming article, Michael M’Gonigle argues that the attention given to “legal law” (state-made law) distracts us from social ordering through other “logics,” such as cars, private property, and corporations, which are equally if not more responsible for the way our world works.[77] As such, the logics aiding the progression of environmental degradation of a full planet go unchecked, and any critique of this social ordering is largely ignored.[78] M’Gonigle proposes Green Legal Theory (GLT) as a new legal paradigm. He argues for a new conception and vocabulary of “law.”[79] According to M’Gonigle, GLT applies to a plethora of fields beyond the narrow scope of environmental law, including constitutional law, corporate law, city planning, social justice projects, and most importantly, economics and politics.[80] The interdisciplinary nature of GLT takes its form as both a verb, reshaping (“greening”) various disciplines, and also as a noun, that integrates “green” content into new disciplines.[81] GLT recognizes as law the logics of social and natural animations that inform and transcend the “legal law.”[82] Rather than recognizing human autonomy and rationality as the point from which social ordering flows, GLT embraces the fact that the individual is a “constructed, relational being” who “collectively constructs the extensive conditions of its own existence.”[83] M’Gonigle wants us to take note of the constructed nature of the conditions humans and other actants[84] have created for ourselves and our planet. He beseeches us to understand that what has been constructed can be deconstructed and reanimated in the form of social ordering that changes the path we are on.

Internationally recognized scholar and intellectual property expert Professor Mira T. Sundara Rajan notes that “rights are ultimately instruments of policy that are malleable in the service of the public interest.”[85] Laws are not born out of universal truths and have not stood for thousands of years.[86] Laws are malleable in the interests of policy, and it is that thread that is often forgotten, and of which M’Gonigle reminds us. Laws are constructed and acted upon by human agents, and it is those humans that give laws their expression.

Similarly, it is humans that give shape to their disciplines. In her article, “Specters of Foucault in Law and Society Scholarship,” Valverde argues that instead of “domesticating” a theorist such as Michel Foucault in the service of a sociology or philosophy, we should “try to think about Foucault’s work not as a source of concepts to be applied to renovate our existing academic homes, but rather as inspiration to go and do likewise.”[87] We must “question the rules of the game” and be critical of the limitations of our disciplines.[88] Academics must understand that rights discourse can be limiting, but attempt to push through these boundaries or work around them. We must ask what is meant by “the law” when it is used “in the singular and without qualification.”[89] How can “the law” be transformed? Valverde’s rejection of disciplinary homes and encouragement to critique and reshape our academic fields demands that we constantly take a step back from our work and view it with a critical, interdisciplinary eye. With interdisciplinary eyes, we can find flexibility.

Our disciplines, like rights, are more malleable than we think. If the parameters of “law” can be expanded as Valverde and M’Gonigle suggest, we must be critical of law’s limitations in order to renovate our disciplines and open up new possibilities. In the following paragraphs, I will critique and evaluate existing forms of legal rights to determine whether they may be of use in protecting Indigenous knowledge.

As previously mentioned, there are no instruments specifically for Indigenous individuals or collectives wishing to protect their knowledge. Intellectual property rights, like Aboriginal rights and title, are based on colonial concepts and reflect the historical origins of the law. The Canadian intellectual property regime depends on Western concepts that need to be unpacked. In a world where “undifferentiated economic growth remains the primary goal of policymakers worldwide,”[90] the Canadian intellectual property regime is based on an economic understanding of culture, resulting in appropriation and commodification of Indigenous knowledge and culture. Economic valuing of culture threatens to overpower those cultures that reject an economic basis for valuing it, potentially wiping out huge stores of cultural wealth.[91] The rationales behind intellectual property protection, like economic importance of innovation, are deeply entrenched in the law. If these rationales could be deconstructed, as M’Gonigle suggests, what would legal protection of Indigenous knowledge look like?

There has only been a handful of court cases concerning Indigenous knowledge brought before the Canadian judiciary, and they raise many questions about how legalism might be used to protect Indigenous knowledge. For example, in 1996, the Comox First Nation and an Indigenous artist from another community went to court in British Columbia over use of the trademark “Queneesh.” The artist used the name to describe his art business. For the Comox Nation, however, “Queneesh” referred to a sacred story, and was also the name of the nation’s development corporation.[92] The British Columbia Supreme Court (“BCSC”) turned down the Nation’s attempt to have its Aboriginal right to the term “Queneesh” reviewed as a trademark case and rejected the idea of an Aboriginal claim to the word “because Aboriginal rights are outside the scope of trademark law.”[93] The BCSC’s logic prompts the following questions: are Aboriginal rights outside the scope of trademark law because they are constitutionally protected? Would constitutionally protected Aboriginal rights trump trademark law? If that is the case, then shouldn’t the Aboriginal right to the word win? Or is the BCSC saying that Aboriginal rights don’t encompass protection of knowledge and heritage? The ruling seems to be in violation of section 35(1), and prompts the question whether Indigenous knowledge and heritage are inherently protected by section 35(1) as an Aboriginal right.

Indigenous scholars and educators Marie Battiste and James Youngblood Henderson, in their book Protecting Indigenous Knowledge and Heritage: A Global Challenge, argue that section 35(1) protects Indigenous “heritage and knowledge” as an Aboriginal right and offers the highest form of protection in Canadian law.[94] I find this argument theoretically persuasive. Section 35(1) could indeed be a very powerful tool to protect Indigenous knowledge, but there are some practical gaps in this theory. Battiste and Henderson fail to account for the problematic and historicized approach of the judiciary in creating tests for the scope and nature of Aboriginal rights and title. Battiste and Henderson cite R v. Sparrow, R v. Van der Peet, and Delgamuukw v. British Columbia as cases proving that Indigenous knowledge and culture are theoretically protected under section 35(1), but fail to take into account the harmful frameworks informing the tests created in these cases. For example, Battiste and Henderson write, “[l]ittle doubt exists that language, systems of ecological and spiritual beliefs and knowledge and ceremonies are an integral and distinctive part of Indigenous knowledge and heritage.”[95]  This statement operates out of the tacit acceptance of the problematic framework of the Van der Peet test, which roots Indigeneity in the past.[96] While Battiste and Henderson also champion the seemingly promising fact that Parliament has never explicitly extinguished Indigenous knowledge systems,[97] and the fact that any infringement of rights must meet the justification test, their argument embraces the paternalistic idea of all power residing with the Crown. They write, “[a]t the center of these constitutional rights is the ability of Aboriginal peoples to define their own contexts or ideas of existence, or meaning, and of spirituality surrounding the mystery of human life and to control their own thoughts and identity.”[98] This statement, evoking language of self-determination, literally centers the very “constitutional rights” that restrict the exercise of Indigenous self-determination.

Battiste and Henderson are not sufficiently critical of the frameworks they are engaging with. While working within the existing legal system is necessary and realistic, it is also useful to draw attention to the colonial principles embedded in the frameworks that prop up the legal system. Section 35(1) is an important and useful tool, but not when it is only used to protect those far-and-few-between rights proven using the rights or title tests. Section 35(1) needs to be expanded from the restrictive definition and scope of rights so that the potential extent of constitutionally protected rights can be exercised.

The humans giving expression to law are for the most part settlers who benefit from the dispossession of Indigenous peoples. It is important to note, however, laws are not universal – they are shaped and given expression by political circumstances of the day. It is possible, then, that section 35(1) becomes a useful tool for protection of Indigenous knowledge and culture. If the courts, in a future case, were to find that the Crown has a constitutional obligation under section 35(1) to protect Indigenous knowledge, there are further questions to be asked. Considering the way the courts have implemented their own judiciary creations, what would section 35(1) protection of knowledge look like in practice? Would the judiciary simply make up a new test? Would protection of Indigenous knowledge then be established on a case-by-case basis? This method of rights protection is expensive and presents other issues as well. It is hard to get community consensus for constitutional challenges, and once more puts faith in institutions that have been used to oppress Indigenous peoples. It is important to remember the practical limitations of the tools we have, even though they may have great potential. Remembering the practical limitations of law incentivizes us remain critical of our disciplines and to answer Valverde’s call to question the rules of the game. How can we reconfigure “law;” how can we imagine rights to protect Indigenous knowledge?

PART IV: RE-IMAGINING LAW

As Brown, Halley, Alfred, M’Gonigle, and Valverde have demonstrated, using legalism has severe limitations and drawbacks. Law, if used at all, needs to be rethought in order to address the protection of Indigenous knowledge. The parameters of law must be expanded, and the destructive growth policies underpinning laws must be deconstructed. In fact, law must be almost completely reimagined. Can law be reoriented in order to effect transformative change? To address this question, I will examine articles by Gordon Christie and Donna Haraway, which offer new ways of thinking about our social ordering.  

Gordon Christie, in his article “Indigeneity and Sovereignty in Canada’s Far North: The Arctic and Inuit Sovereignty,” offers a reoriented perspective on law. He draws attention to the narrative of Western law, demonstrating the “magical” and constitutive power of language.[99] Christie deconstructs the language and narrative of the “sovereign” state. He argues that sovereignty is used as a convenient tool to assert territorial claims over vast tracts of land in the Arctic – the word functions as though it is “owed obedience.”[100] Resisting further dispossession within the state’s “story” of sovereignty by citing the right to self-determination as promised by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is limited by the fact that article 46 of UNDRIP states that the territorial integrity and political unity of a sovereign state must remain intact.[101] As such, “imagination is constrained within this model – our plans and strategies can only reach out so far.”[102] Christie proposes his concept of “meeting story with story” to combat further dispossession.[103] He offers “indigeniety” as a tool to meet the story of the sovereign nation and deconstruct the fabrication of sovereignty as the only way to relate to land.[104] In particular, Christie claims that the Inuit can tell stories about their relationships to land and animals as “alternate stories” about how humans should act in relation to land and animals.[105] These stories, “inhabiting a normative universe with roots distinct from the cultural and social history of the West” have the ability to challenge the sovereignty model and its ontological relationality with land and animals – a relationship undergirded by domination and extraction.[106] Christie suggests we reorient ourselves towards sovereignty and its aids (the law, for example), and perceive them simply as story.

In a similar vein, Donna Haraway in “Staying with the Trouble: Anthropocene, Capitalocene, Cthulucene,” attempts to open up space to see the possibility in what is generally considered to be an ecologically doomed world.[107] Haraway believes we must reorient our thinking by reworking the tools we use to think, know, and relate, in order to imbricate ourselves in collective practices that take up caring about one another across species. Haraway is de-centering the human, in a sense zooming out her lens, to bring together all species in a symbiotic network that must work together to cultivate conditions wherein survival is a possibility. In her model of collaborative survival, legalism is absent. Collaborative survival takes up the space that law usually inhabits: caring for other species in a meaningful way will produce new social regulation, much the same way law regulates social ordering. However, progress and capital accumulation will not be the driving forces.[108] Instead, collaborative survival and multispecies caring will create a world in which humans pick up response-ability (echoing Taiaiake Alfred).[109] For example, Haraway discusses an example of a group of women’s collective practice of crocheting coral reefs to raise awareness about how large swaths of reefs are dying at unprecedented rates due to the warming of our oceans.[110] Through crocheting, these women are becoming intimate with a coral reef, simultaneously learning and creating it. The collective practice of crocheting a living entity combines women’s fiber arts, environmentalism, math, beauty, display, and intimacy without interference, raising the question of what is still possible in this century when coral reefs still exist. It is a reorientation to reality: the coral reefs exist in both realities (in one, as a dying species, in another, as an embodiment of humanity’s ability to be intimate and caring with other species), but the way we think about them must be changed. Haraway is not rejecting legalism. She is simply reimagining what is possible when we change how we relate to other species.

In a way, the models offered by Haraway and Christie come full circle with Taiaiake Alfred’s rejection of legalism. Christie’s suggestion of stories and Haraway’s offering of new relationships are reflective of Cheryl Bryce’s practice of knowledge protection – by revitalizing her relationship with the land by harvesting kwetlal, she is creating her own story, her own law. Law, in a Western sense, must be reimagined. Haraway and Christie demonstrate the potential of new social ordering by reimagining through stories and relationships. Would Indigenous knowledge need protecting if we related to animals and land differently? If one removed “progress” and capital accumulation from the equation of our world, would Indigenous knowledge still be appropriated? Reimagining law as simply a story, or as a relationship with other species illustrates the extent of what is possible within this world.

CONCLUSION

Indigenous peoples and their allies are never going to be given the perfect tools and circumstances to create a better world.[111] Communities, scholars, lobbyists, activists, settlers, and other stakeholders must attempt to enact change with the mechanisms already in place. That is why it is worthwhile to examine legalism as potential tool for the protection of Indigenous knowledge. The implementation of “Aboriginal rights” so far has not been perfect: in fact, it has not even been acceptable. However, there is potential within law, and within the people who interpret it. Furthermore, as many of the theorists above have shown, there is vast potential beyond legalism.

In this paper, I attempted to determine whether legalism is a theoretically appropriate place to start searching for solutions to the appropriation of Indigenous art and knowledge. First, I contextualized the appropriation of Indigenous knowledge, explaining why Indigenous knowledge is at risk of being appropriated and discussing unethical aspects of research. Next, I examined Brown, Halley, and Alfred’s rejection of legalism, and used their insights to illustrate the limitations of rights discourse regarding Indigenous knowledge protection. I then considered Valverde and M’Gonigle’s recommendations to renovate law to make it a productive place where new possibilities can be unearthed. Finally, I explored reimagined social orderings in Christie and Haraway’s articles. These seven theorists have offered new ways to think about legalism in relation to Indigenous knowledge protection. While I have not offered a definitive answer about whether rights discourse is a productive place to craft workable solutions to the appropriation of Indigenous art, I hope readers feel inspired to think about law differently, and feel free to redefine what “law” means and what it can accomplish.

 

ENDNOTES

[1] Charles Elliott, personal conversation, March 2, 2016.

[2] Simon Brascoupé and Karin Endemann, Intellectual Property and Aboriginal People: A Working Paper (Ottawa: Department of Indian and Northern Affairs, 1999) at 1 [Brascoupé & Endemman].

[3] See George Nicholas et al. Intellectual Property Issues in Cultural Heritage: Theory, Practice, Policy, and Ethics (Vancouver: Simon Fraser University, 2007); United Nations, The United Nations Declaration on the Right of Indigenous Peoples (New York: United Nations, 2008); World Intellectual Property Organization, Intellectual Property, Traditional Knowledge and Traditional Cultural Expressions/Folklore: A Guide for Countries In Transition (Geneva: WIPO, 2013).

[4] For an account of how the Canadian government has attempted to assimilate Indigenous peoples and erase their cultures, see Truth and Reconciliation Commission of Canada, Final Report of the Truth and Reconciliation Commission of Canada Volume One: Summary (Toronto: James Lorimer & Company Ltd. Publishers, 2015) [TRC].

[5] John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases, Materials, and Commentary (Markham, ON: LexisNexis Canada Inc., 2012) at 47 [Borrows & Rotman]; TRC, supra at 1.

[6] Marie Battiste and James Youngblood Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon: Purich Publishing Ltd., 2000) at 61 [Battiste & Henderson]; Catherine Bell, “Restructuring the Relationship: Domestic Repatriation and Canadian Law Reform,” in Protection of First Nations Cultural Heritage: Laws, Policy and Reform (Vancouver: UBC Press, 2009) at 65; Brian Noble “Poomaksin: Skinnipiikani-Nitsiitapii Law, Transfers, and Making Relatives: Practices and Principles for Cultural Protection, Repatriation, Redress and Heritage Law Making with Canada,” in First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives (Vancouver: UBC Press, 2008) at 260; Mira T. Sundara Rajan. Intellectual Property and Aboriginal Peoples: Conflict or Compromise? (Vancouver: The Scow Institute, 2008) at 26 [Sundara Rajan]; Norman Zlotkin, “From Time Immemorial: The Recognition of Aborginal Customary Law in Canada,” in Protection of First Nations Cultural Heritage: Laws, Policy and Reform (Vancouver: UBC Press, 2009) at 343.

[7] Taiaiake Alfred, “‘Sovereignty’ – An Inappropriate Concept,” in Peace, Power, and Righteousness, 2e (Oxford University Press, 2009) [Alfred].

[8] Wendy Brown and Janet Halley, “Introduction” in Left Legalism: Left Critique (Duke University Press, 2002) [Brown & Halley].

[9] Mariana Valverde, “Specters of Foucault in Law and Society Scholarship” (2010) 6 Annual Review of Law and Social Science 45 [Valverde].

[10] Michael M’Gonigle, “Logics as Law: Rethinking Social Regulation in a Full Planet, That Is, Green(ing) Legal Theory in the Animacene” (Faculty of Law, University of Victoria, 2016) [unpublished] [M’Gonigle].

[11] Gordon Christie, “Indigeneity and Sovereignty in Canada’s Far North: The Arctic and Inuit Sovereignty” (2011) 110(2) The South Atlantic Quarterly 329 [Christie].

[12] Donna Haraway, “Staying with the Trouble: Anthropocene, Capitalocene, Cthulucene” in Jason W. Moore, ed, Anthropocene or Capitalocene? Nature, History, and the Crisis of Capitalism (Oakland: PM Press, 2016) 37 [Haraway].

[13] Brascoupé & Endemann, supra at 1.

[14] Walter C. Fleming, The Complete Idiot’s Guide to Native American History (New York: Alpha Books, 2003) at 290. See also R v Van der Peet [1996] 2 SCR 507 at para 46, wherein the Supreme Court of Canada established a test to determine the crucial elements of distinctive pre-contact societies instead of the relevant existing Indigenous communities, seemingly in order to avoid the influence of settler society. The Court’s over-emphasis on European arrival prevents Western perceptions of Indigenous culture from evolving past a pre-contact state from a legal standpoint.

[15] Leanne Simpson, “Anticolonial Strategies for the Recovery and Maintenance of Indigenous Knowledge” American Indian Quarterly 28.3 (2004) at 373-375 [Simpson].

[16] For an exploration of the lack of fit between Canadian intellectual property rights and Indigenous knowledge, see Brascoupé & Endemann supra.

[17] Brascoupé & Endemann, supra at 8.

[18] ThĂ©berge v. Galerie D’Art du Petit Champlain Inc. [2002] 2 S.C.R. 336.

[19] Ibid.

[20] Copyright Act, R.S. C., 1985, ch. C-42, s. 5.1 and 23.1.

[21] Moral rights in Canada meet Berne standards (Berne Convention for the Protection of Literary and Artistic Works at article 6bis, at WIPO website: <http://www.wipo.int/treaties/en/text.jsp ?file_id=283698>), but are excluded from the Trade Related Aspects of Intellectual Property Rights Agreement (Overview: The TRIPS Agreement, at World Trade Organization website: <https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm>).

[22] Paterson, supra at 53. Paterson argues that moral rights are considered “sympathetic to the concerns” of Indigenous peoples because the right to integrity may afford protection against distortion through inaccurate or unauthorized use of their cultural symbols. He warns that moral rights focus on the individual author, not a community, demonstrating a limitation to the usefulness of moral rights law. Nevertheless, the philosophy informing moral rights is worth exploring.

[23] Copyright Act, R.S. C., 1985, ch. C-42, s. 14.1 and 14.2.

[24] Stef van Gompel, Formalities in Copyright Law: An Analysis of their History, Rationales, and Possible Future (Maryland: Aspen Publishers, Inc., 2011) at 76 [Van Gompel].

[25] Ibid.

[26] Lyombe Eko. New Media, Old Regimes: Case Studies in Comparative Communication Law and Policy (Maryland: Lexington Books, 2012) at 287.

[27] Van Gompel, supra at 98. The natural rights theory asserts there is an “inextricable bond” between a work and its creator.

[28] Snow v. The Eaton Centre Ltd., (1982), 70 C.P.R. (2d) 105.

[29] Infra at 29.

[30] U.S. Copyright Act, 17 U.S.C. 101-810, section 102.  

[31] Canadian Admiral Corporation Ltd. v. Rediffusion Inc., [1954] Ex. CR 382, 20 CPR 75.

[32] David Vaver, Copyright Law (Toronto: Irwin Law, 2001) at Chapter 3.

[33] Section 102 (a) of the U.S. Copyright Act states: “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

[34] Simpson, supra at 376.

[35] Ibid.

[36] Simpson, supra at 376.

[37] Ibid.

[38] Ibid.

[39] Ibid at 375.

[40] Simpson, supra at 376.

[41] Ibid.

[42] Brown & Halley, supra at 5.

[43] Brown & Halley, supra; Alfred, supra.

[44] Brown & Halley, supra at 4.

[45] Ibid at 3-4.

[46] Ibid.

[47] Ibid at 5.

[48] Ibid at 33.

[49] Ibid at 6.

[50] Ibid at 13.

[51] Ibid at 6.

[52] Brown & Halley, supra at 17.

[53] Alfred, supra at 55.

[54] Ibid at 56.

[55] Ibid at 58.

[56] Ibid.

[57] Audre Lorde, “The Master’s Tools Will Never Dismantle the Master’s House” in Sister Outsider: Essays and Speeches. (Berkeley, CA: Crossing Press, 1984) at 110.

[58] Borrows & Rotman, supra at 92.

[59] Ibid at 93.

[60] Ibid at 94-95.

[61] Borrows & Rotman, supra at 49.

[62] Tsilhqot’in Nation v. British Columbia [2014] 2 SCR 256 at para 69 [Tsilhqot’in].

[63] Delgamuukw v British Columbia [1997] 3 S.C.R. 1010.

[64] Borrows & Rotman, supra at 198.

[65] Report of the Royal Commission on Aboriginal Peoples: Looking Forward and Looking Back Vol. 1 (Ottawa: Supply and Services Canada, 1996) at recommendation 1.16.2 at page 969.

[66] Tsilhqot’in, supra at para 69.

[67] R v Sparrow [1990] 1 S.C.R. 1075 at para 1103. 

[68] See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (Geneva: WIPO, 2001), online: Fact Finding Missions Report <http://www.wipo.int/edocs/pubdocs/en/tk/768/wipo_pub_768.pdf>. This report compiles information gathered from nine fact-finding missions to identify the needs and expectations of what they termed “traditional knowledge holders” conducted in 1998-1999. The sheer size of the report indicates how difficult it is to identify the content of “traditional knowledge.”

[69] Briony Penn, “Restoring Camas and Culture to Lekwungen and Victoria: An Interview with Cheryl Bryce” (2006) Focus Magazine at 1 [Penn].

[70] Ibid at 2.

[71] Ibid at 1.

[72] John Borrows, “Unextinguished: Rights and the Indian Act” (Faculty of Law, University of Victoria, 2015) [unpublished] at 1 [Borrows].

[73] Constitution Act, 1982, Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[74] Ibid.

[75] M’Gonigle, supra.

[76] Valverde, supra.

[77] M’Gonigle, supra at 3.

[78] Ibid, at 5.

[79] M’Gonigle, supra at 5.

[80] Ibid.

[81] Ibid.

[82] Ibid at 10.

[83] Ibid.

[84] See generally Bruno Latour, Reassembling the Social – An Introduction to Actor Network Theory (Oxford: Oxford University Press, 2005).

[85] Sundara Rajan, supra at 32.

[86] Borrows, supra at 1.

[87] Valverde, supra at 46.

[88] Ibid at 54.

[89] Ibid at 55.

[90] M’Gonigle, supra at 4.

[91] Sundara Rajan, supra at 17.

[92] Brascoupé & Endemman, supra at 19; Sundara Rajan, supra at 30.

[93] Ibid.

[94] Battiste & Henderson, supra at 215.

[95] Battiste & Henderson, supra at 213.

[96] The Van der Peet test characterizes the SCC’s attempt to crystalize Indigenous cultures in a pre-contact time, infra at 4.

[97] It is important to note that the Canadian government has attempted to extinguish Indigenous knowledge systems, though not through explicit legislation. For example, the residential schools system was “created for the purpose of separating Aboriginal children from their families in order to minimize and weaken ties and cultural linkages, and to indoctrinate children into a new culture – the culture of the legally dominant Euro-Christian Canadian society,” TRC, supra at v.

[98] Battiste & Henderson, supra at 212.

[99] Christie, supra at 330.

[100] Ibid at 330 and 338.

[101] United Nations. The United Nations Declaration on the Right of Indigenous Peoples (New York: United Nations, 2008).

[102] Christie, supra at 339.

[103] Ibid at 342.

[104] Ibid at 340.

[105] Christie, supra at 342.

[106] Ibid.

[107] Haraway, supra at 40.

[108] Ibid at 58.

[109] Ibid at 45.

[110] Donna Haraway, “SF: String Figures, Multispecies Muddles, Staying with the Trouble” (Presentation delivered at the University of Alberta, Edmonton, AB, March 24, 2014) [published] online: <https://www.youtube.com/watch?v=Z1uTVnhIHS8>.

[111] Jeff Corntassel, “Living in a Longer Now: Moving Beyond the State Centric System” in Waziyatawin & Michael Yellow Bird, eds, For Indigenous Minds Only: A Decolonization Handbook (Santa Fe, NM: School of Advanced Research Press, 2012).