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Mca Presentation   March 20, 2009

Mca Presentation March 20, 2009



Presentation to Aboriginal Tourism BC members regarding Traditional Knowledge Protection - Domestically and Internationally

Presentation to Aboriginal Tourism BC members regarding Traditional Knowledge Protection - Domestically and Internationally



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    Mca Presentation   March 20, 2009 Mca Presentation March 20, 2009 Presentation Transcript

    • Traditional Knowledge: Legal Protection at the Local, Provincial, National and International Level Merle Alexander Tsimshian Nation Chair 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
      • Introduction
      • Traditional Knowledge Generally
      • Protocols
      • IP Options
      • Sui Generis Options
      • 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.
      • 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
      • 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 Alexander Boughton Law 700-595 Burrard St. Vancouver BC, V7X 1S8 +16046474145 [email_address]