Winner of the 2020 IP Law Student Essay Competition

  • July 24, 2020

Reforming Canada’s Intellectual Property Laws: the Slow Path to Reconciliation

Adam Lakusta (University of Manitoba – Faculty of Law)

(disponible uniquement en anglais)

"We need to get to a place where Indigenous peoples in Canada are in control of their own destiny, making their own decisions about their future."1 – Justin Trudeau, 14 February 2018

Part 1. Introduction

Although seemingly well-intentioned, this statement by Canada’s Prime Minister may be seen as political puffery to many Indigenous people. While Canada prides itself on its cultural diversity, it is stained by its historic mistreatment of Indigenous peoples.2 In fact, the Canadian conditions for Indigenous peoples have recently been described as imposing “intersectional systems of oppression”, with marginalization that continues to this day.3 In 2016, it was reported that 1,673,785 (or 4.9%) Canadians were Indigenous (meaning First Nations, Métis, and Inuit peoples).4 With nearly 5% of Canadians identifying as Indigenous, the new insights of the breadth of systemic discrimination reported by the National Inquiry into Missing and Murdered Indigenous Women and Girls come as a damning assessment of Canadian cultural diversity.5 While complex, much of the discrimination faced today by Indigenous people occurs along socioeconomic lines.6 Legally, one thing that the Government of Canada can do to prevent this discrimination is to reform the way Canadian laws recognize Indigenous Intellectual Property (IP).

The main form of Indigenous IP is Traditional Knowledge (TK). While there is no universally accepted definition of TK, it can be broadly understood as the knowledge, skills, and practices that are passed down through the generations of a community that forms part of the community’s culture and spirituality.7 As TK is an integral part of Indigenous culture, the IP associated with it is held collectively, rather than individually. Despite the importance of TK to Indigenous cultures, the international IP regime fails to recognize the collective ownership of Indigenous IP rights. Thus, in order to properly accommodate the needs of Indigenous peoples, broad legislative change is required.

As the Canadian Government has committed to the goal of achieving reconciliation with its Indigenous peoples, amending Canadian IP laws to accommodate TK is an important step towards this goal. Through the proper regulation of IP, it may be possible to address the ongoing socioeconomic discrimination against Indigenous peoples. By extending more protection to TK, Indigenous groups would be empowered to determine how their IP is used, as well as to choose whether to commercialize it. In turn, this would function to promote the economic wellbeing of Indigenous peoples, while enabling them to retain control over their respective cultures.

Canadian reform can be achieved by two means: the amendment of existing legislation, or by establishing, as some countries have, sui generis systems for TK.8 While not excluding the success of any prospective international sui generis treatment of TK, it is deserving of a more thorough analysis than can be offered in the present article. This paper begins by defining the international issue of appropriation and biopiracy, describing the differing conceptions of property, and by examining Canada’s international obligations to respect TK. Having established Canada’s international obligations, two examples of cultural appropriation in Canada are given. A comparative analysis is then performed between Canadian policies and select policies from New Zealand and India with respect to IP. This paper concludes by proposing that, towards reconciliation and its stated goals in international agreements, Canada can both incorporate principles from its international obligations into domestic law, and look to other states, such as New Zealand and India, as models to mold its IP policy and legislation after.

Defining the Problem

The problem of commercial appropriation attracted the international spotlight, perhaps most notoriously, in a case involving the San people of the Kalahari Desert in South Africa.9 For thousands of years, the San people knew of the appetite-suppressant qualities of the Hoodia cactus.10 In the 1990s, this quality caught the attention of researchers in the South African Government, as well as the pharmaceutical industry. The compound responsible for the appetite-suppressant effects, termed “P57”, was patented by the South African Council for Scientific and Industrial Research (CSIR) in 1998.11 CSIR then gave the exclusive license to test, develop, and commercialize P57 to Pfizer, and then to Phytopharm.12 Upon hearing about the traditional origin of P57, various organizations criticized CSIR for failing to acknowledge or compensate the San people for their TK, as this was contrary to the Convention on Biological Diversity (CBD) – a convention to which South Africa was (and is) a signatory.13 As a result of this controversy, the San people were eventually able to negotiate an Access and Benefit Sharing (ABS)14 agreement in 2003.15 While this case had a relatively positive outcome, the UN estimates that over 70 percent of global therapeutic plant-derived drugs are brought to the attention of pharmaceutical companies through TK in a process called ‘bioprospecting’.16 Bioprospecting involves the search for biological resources and its associated TK with a goal of exploiting its economic value.17 The use of bioprospecting to guide drug screening can increase its efficiency by more than 400 percent, and in 2008, the market for drugs discovered through this method was estimated to be $43 billion (USD).18 The use of this process, if done without a fair agreement between parties (i.e. the resource user and the source nation), has been termed ‘biopiracy’.19

The global IP regime has been accused of facilitating the process of biopiracy and other forms of cultural appropriation.20 This regime, while being an attempt to encourage and protect useful innovations, is limited by its failure to acknowledge group authorship and equitably reward the TK-holders associated with such innovations.21 This problem is not solely related to TK, but can also be extended to open-source software, and in the future, works generated by artificial intelligence.22 Whereas questions relating to TK and group authorship are not new to the global IP regime, these issues become more pressing as technology evolves and globalization continues. To get at the issue of group IP rights, it is essential that states first acknowledge that there are differing conceptions about the nature of property, and that these need to be accommodated within the frameworks regulating IP.

Different Conceptions of Property

Although seemingly simple, the concept of property is contextual and differs based on the people defining it. At the highest level, property has been described as a set of practices that signify social relationships that bear directly on how we behave with one another and the world at large.23 As a result of the widespread effects of colonization, the dominant view of property is derived from the colonial perspective. The colonial conception of property has been described as a collection of rights over things that are enforceable against others.24 This view contrasts greatly with certain Indigenous conceptions of property ownership. Perhaps contrary to popular opinion, it is not the case that Indigenous people necessarily believe in collective property rights; however, this is the result arrived at by applying colonial conceptions of property ownership to those of Indigenous peoples.25 For many Indigenous people, the concept of property is more intangible and entangled with their personality, spirituality, and family lineage.26 To some, they believe their relationship with the environment is one akin to stewardship.27 As stewards, they believe they are part of the natural world, but in a position of trust, and are tasked with selecting resources and how they should be used. Conversely, some Indigenous groups, such as the Mohawks, harbour a similar conception of property as the West. The Mohawk’s have traditionally had a territory that belongs to them collectively to the exclusion of outsiders, although possessing ‘softer’ property rights between individual Mohawk families.28 Thus, it is an unwarranted simplification to state that all Indigenous people believe in collective property ownership. Each Indigenous group has their own unique understanding of property, and attention must be paid to the specific origins of these conceptions to fully appreciate and accommodate them.

While the many property beliefs amongst Indigenous groups does not lend itself to being easily reconciled with the Canadian system of property, we can turn to various international instruments and similarly situated countries as models in order to design our own reconciliatory laws and policies.

Canada’s International Obligations

Over the course of the last three decades, the international community has attempted to implement various instruments that target ABS and collective IP rights. As denoted by the CBD, ABS refers to the way genetic resources are accessed, as well as how the benefits arising from their use are shared between the users and providers of the genetic resources.29 Although many countries have signed on to these initiatives, there remain a handful of countries that have been against these initiatives. Canada remains a part of this handful of countries that has not contributed enough to these international efforts.30

The Convention on Biological Diversity

The CBD is a legally binding instrument that was made with the stated objectives to forward the causes of “[conserving] biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.”31 It was opened for signing on 5 June 1992. Canada signed this multilateral treaty on 11 June 1992 and ratified it on December 4th of the same year. Along with Canada, 192 countries have become parties to the CBD. It is important to note that, despite being a legally binding treaty, the CBD has been described as, “a process by which its Parties agree to take certain actions at the national level.”32 It thus represents an existing and future commitment to change policies and behaviours in accordance with the principles embodied in the Convention.

Access and Benefit Sharing in the CBD

The functional provisions of the CBD, in terms of ABS, are articles 8 – In-situ Conservation, and 15 – Access to Genetic Resources. These articles provide that Canada shall:

[R]espect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.33

As well as:

[Share] in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.34

In essence, not only do these provisions establish Canada’s legal obligation to maintain and promote TK, but they establish that Canada must encourage ABS arising from their use. By 2020, Canada plans to “promote access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge.”35 Additionally, in its Biodiversity Outcomes Framework, Canada has also made it a priority by 2020 to respect and promote Indigenous TK.36

Despite these commitments, it is unclear as to whether Canada will in fact meet its stated goals by 2020, as it has failed to meet its previous deadline of 2015, while having little reported effort towards ABS in the past.37 Almost three decades after ratifying the CBD, Canada has yet to make any substantive steps towards implementing a Federal system for ABS.

United Nations Declaration on the Rights of Indigenous Peoples

On 13 September 2007, 144 nations adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Despite the vast international support enjoyed by UNDRIP, Canada was among four nations globally that voted against its adoption. After broad international criticism, Canada finally endorsed UNDRIP in 2010 with heavy qualifications regarding the articles concerning prior informed consent, land and resource rights, and IP.38 Only with a change of government did Canada finally endorse UNDRIP without qualification in May 2016.39

Although UNDRIP is not legally binding, Article 31 provides that:

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 [emphasis added].40

Most important for the purposes of this article, through its unqualified endorsement of UNDRIP, Canada acknowledged the broad IP rights of Indigenous peoples to their TK and genetic resources, and in so doing created a politically binding obligation. Such agreements, if broken, have the ability to greatly undermine international credibility, thereby affecting a state’s ability to make international agreements in the future.

The Nagoya Protocol

While Canada’s UNDRIP narrative was unfolding, negotiations for the Nagoya Protocol (NP) were taking place. Completed in 2010, the NP is a supplementary agreement to the CBD aimed at promoting ABS. As the commitments within the CBD were quite broad, the NP adds clarity and provides a “strong basis for greater legal certainty and transparency for both providers and users of genetic resources.”41 Further, the protocol lays out specific obligations for both compliance with domestic policies of resource providers, and compliance with contractual obligations.42 As Canada is a party to the CBD, it took an active role in negotiating the formation of the NP. The positions taken by Canada were often difficult, and in a 2005 report, Canada took issue with the draft protocol having a definition for TK, as well as fundamentally disagreeing with the distinction between users and providers of genetic resources.43 Additionally, Canada opposed a reference to UNDRIP in the preamble of the NP – a position which Canada conceded after international criticism.44

In the end, it came as no surprise that Canada did not sign the Protocol. While Canada’s reluctance to implement the NP may show its lack of desire for an internationally structured ABS system, it must be noted that the NP is supplemental to the CBD, and so not signing it does not absolve Canada of its legal obligations. Despite not having signed the NP, Canada’s official position is that it can accede to the NP at any point, and that it has been “engaging with interested stakeholders” (including Indigenous peoples) on the matter.45 Canada is therefore in a position where it can choose to adopt the NP in short order.  

Part 2. Appropriation in Canada

Although there are many cases involving the appropriation TK, this article details two examples of appropriation in Canada that underscore the lack of protection afforded by Canadian legislation. [46] As of yet, there have been no documented instances of biopiracy in Canada; however, given the extensive amount of bioprospecting (particularly in the Arctic and along Canada’s coastlines), there is a tangible risk of biopiracy occurring in the near future.47

The Cowichan Sweater Case

In 2009-2010, the Hudson’s Bay Company (HBC) produced mass-manufactured Chinese-made sweaters as part of their series of official merchandise for the 2010 Vancouver Olympics. This seemingly innocuous product was the cause of great controversy, as the Cowichan Tribes, an Indigenous group from Vancouver Island, alleged the misappropriation of their traditional designs.

Whether the HBC sweater was a knockoff of the more expensive Cowichan sweater is the subject of contention; however, there are striking similarities between the two designs. The woolen sweaters made by both the HBC and the Cowichan knitters were each seamless, had shawl collars, and used natural wool tones such as white, black, brown, and grey.48 In addition to these features, each had horizontal bands and symmetrical animal patterns on the front.49

In 2009, after having a lawsuit filed against them by the Cowichan, HBC came to an agreement where they would sell the handcrafted authentic sweaters exclusively in their downtown Vancouver store during the Olympics.50 Despite this result, HBC continued to sell the mass-manufactured sweaters alongside the authentic sweaters, and due to the short notice, the Cowichan knitters were not able to produce enough sweaters to satisfy the demand.51 In further injury to the Cowichan people, HBC produced a similar sweater as part of their 2012 London Summer Olympics series, and in 2015, fashion giant Ralph Lauren introduced a Cowichan knockoff sweater of their own.52 After threatening litigation and gaining some bad press coverage, Ralph Lauren and the Cowichan appear to have come to an undisclosed agreement, and the sweater is now branded as a “Cowichan-inspired zip sweater.”53

The Amauti Case

Another example highlighting the threat of cultural exploitation relates to Canada’s Inuit. Various pieces of Inuit cultural property have been appropriated in the past without acknowledgement or compensation towards its creators. A few infamous examples include the parka, kayak, and the kamik – a style of boot taken from the Inuit which has been marketed using an inukshuk as a trademark.54 Other than these notorious examples, there is the amauti – a parka-like jacket that is traditionally made out of materials including sealskin and caribou hide.55 The amauti is unique in that, among other features, it is designed with a distinctive pouch on the back to place infants to protect them from frostbite.56

In 1995, the Pauktuutit Inuit Women’s Association (Pauktuutit) showed some of its traditional works as part of Ottawa’s Winterlude festival, as well as at a fashion show at Toronto’s Canadian National Exhibition.57 Following these shows and the growing Southern interest for Inuit designs, Donna Karan, a fashion designer and founder of the brand DKNY, sent representatives up to the Arctic in 1999 to buy clothing, including amautis.58 Upon hearing about this, Pauktuutit began a successful letter-writing campaign to Donna Karan in effort to stop the appropriation of the amauti and other Inuit articles. Though the campaign ended in success, it illustrated the risk of misappropriation their culture was exposed to without proper IP protections. This misappropriation was realized in a 2015 London fashion show that showcased Inuit designs without permission.59

While the amauti and other elements of Inuit culture are claimed collectively by all Inuit, as it stands in Canada, the system for IP is geared towards commercial and economic rights over privately owned IP.60 In this system, the group ownership claimed by the Inuit is effectively placed into the public domain. This was further evidenced when Canada’s Federal Department of Industry expressed the view that there is no sui generis IP system for protection of TK, and that “other aspects of folkloric expressions [not protected by the current IP system] are available without restrictions and thus serve to enrich the fabric of Canada’s multicultural society.”61 Although this position was stated in 2002, it does not appear to have changed.62

As demonstrated by the forgoing examples, the sustained lack of respect for TK highlights the need for legislative intervention. The exploiters, in this case HBC, and various fashion designers, show no sign of stopping their cultural appropriation. Absent legislation barring the exploitation of cultural products, Indigenous groups are left without legal footing to defend against exploitation, and having to rely on damaging media campaigns to hold exploiters accountable.

Part 3. Jurisdictional Comparison

Canadian IP Law and Traditional Knowledge

As Canadian IP laws have been styled to conform to our major trading partners, the laws retain a highly Westernized (colonial) conception of property. Despite facilitating most transactions, as demonstrated above, they have failed to accommodate TK.63


Among the various forms of IP protection, patents offer the most robust and exclusive form of protection by granting a commercial monopoly lasting twenty years. To attain a patent, an invention must be non-obvious, new, and useful.64 This definition is similar to other patenting regimes in states such as the US, England, and New Zealand.65 Much TK is non-obvious and useful; however, because it is often not ‘new’ in the legislative sense, it does not qualify as an invention.

Despite the power patents have in the market, Indigenous peoples have enjoyed little use of them.66 Indigenous people, who often lack the resources required to attain patents, may instead choose to share their TK with companies and establish ABS agreements.67


Copyright has been used extensively by Indigenous performers, artists, and makers to cover items ranging from sculptures, sound recordings, totem poles, and architectural drawings.68 Even as copyright is used by Indigenous people, it fails to meet fundamental Indigenous needs due to it protecting the expression of ideas and not the ideas themselves.69 As TK is often expressed informally, it generally would not be eligible for copyright protection. Even if TK and folklore were eligible for copyright protection, it has been reported that Indigenous peoples would like a degree of control over the appropriation of their TK, and not simply a limited protection.70 Many forms of TK have existed for thousands of years and have become an integral part of Indigenous culture. Owing to this fact, the fifty years of protection currently offered by Canadian copyright law is insufficient. Additionally, if TK is first published by a non-Indigenous person who receives copyright protection, then there is a risk that Indigenous people would lose control of their culture.71 In this way, the demands and limitations of the current Canadian copyright system frustrate the protection of TK and leave it vulnerable to exploitation.


Issues of cultural appropriation fare slightly better under trademark law in Canada. Collectives composed of Indigenous artisans may apply for a trademark. These trademarks can be renewed indefinitely, and can cover words as well as images, or any such combination. While this does not bar companies from developing similar products, it would allow the public to know where the product was made and function as a means of distinction with unauthentic competitors. Further, by virtue of the Paris Convention for the Protection of Industrial Property, trademarks registered in Canada are given priority registration in other signatory states.72

Another form of protection stems from the fact that the Trademarks Act was largely a codification of the existing Common Law in 1868. As such, additional protections may be afforded to Indigenous peoples without having the need to register their trademarks – they would have a common law right to the marks by virtue of their historic use.73 This could prove useful for Indigenous terms and imagery, which, if these cultural symbols were all to be registered as trademarks, would be prohibitively expensive.74 As long as there are consistent marks on the products which indicate “the kind, quality, quantity, destination, value, place of origin or date of production of any goods or services [during trade]”75, there may exist a right to the mark by virtue of the common law. Anyone who attempted to use the mark in Canada would be subject to an action for the tort of passing off, as confusion would be a likely consequence of the sale or advertisement using the same mark.76

Finally, there is a provision within the Trademarks Act that allows for the registration of official marks.77 This form of protection could most likely extend to Indigenous groups created through self-government agreements.78 It has seen previous success through the use of the Igloo mark – denoting authentic Inuit artwork.79 In addition to its potential for commercial success, it has been suggested that the non-commercial nature and differing criteria that apply to official marks would be more suitable to certain Indigenous groups, as not all groups would want to commercialize their marks.80

In conclusion, the Trademarks Act offers the strongest form of protection available for TK. This is due to the fact that most forms of TK are not novel enough to be patented, and copyright only applies for a limited period of time and provides insufficient coverage of ideas. Despite its relative strength, trademarks and official marks still afford TK an inadequate level of protection. The use of marks can only ever function to distinguish Indigenous products as being authentic, but do not provide the ability to control the appropriation of TK.

Given the lackluster protection afforded to Indigenous culture in Canada, it is useful to turn to similarly situated countries to analyze how they have attempted to reconcile TK with their IP systems.

New Zealand’s IP Regime

As a consequence of Canada and New Zealand being colonized by Britain, they each have a shared legal base and minority Indigenous populations.81 New Zealand’s colonization was soon followed by the signing of the Treaty of Waitangi in 1840 – a treaty codified under the Treaty of Waitangi Act 1975.82 The Act created a permanent commission called the Waitangi Tribunal to analyze claims brought by the Māori, provide recommendations, and to analyze whether proposed legislation is contrary to the Treaty of Waitangi.83 The recommendations of the Tribunal have had a major impact on New Zealand’s legislation, and so despite sharing similar colonial origins with Canada, the past decades have seen New Zealand pass progressive legislation aimed at accommodating Māori concerns.

In 2002, New Zealand overhauled its Trade Marks Act.84 Although this bill was slated to be passed in 1995, the legislation was delayed due to Māori objections.85 In the end, the Act effectively stopped the registering of trademarks that would be “likely to offend a significant section of the community, including Māori.”86 Further, the Act makes offense, or likelihood thereof, grounds for opposition and revocation of a trademark.87 This Act also established the Trademarks Māori Advisory Committee which is composed of members possessing sufficient knowledge of the Māori worldview, protocol, and culture.88 The work done by this committee is to provide advice as to whether an application contains marks that are derivative of Māori marks, as well as to comment on whether they believe the mark would be likely to offend Māori people.89

In 2013, an amendment to the NZ Patents Act established the Patents Māori Advisory Committee – a measure taken in response to the Wai 262 Report.90 Similar to the Trademarks Māori Advisory Committee, this committee is composed of members who have sufficient knowledge of Māori culture. The committee’s purpose is to advise the Commissioner about whether an invention is derivative of Māori TK (including plants and animals), as well as to provide insights as to whether inventions are contrary to Māori values.91 Although the committee can advise the Commissioner with respect to patentability, it is important to note that this advice is not binding on the Commissioner.92 This system of nonbinding advice represents a kind of ‘halfway-house’ solution, in that it alerts the Commissioner, but does not hold determinative power over applications. While New Zealand did establish the Patent Advisory Committee in response to the Wai 262 Report, the report suggests that the Commissioner be “required” to take advice and work with the committee when making determinations about patents.93 As it stands in the NZ Patents Act, the advisory committee is reactionary, as well as unable to make binding decisions on patentability – two points the Wai 262 Report specifically advised against.94

Additional recommendations contained in the Wai 262 Report include: making Māori culture a key factor relating to inventiveness, establishing a register of Māori cultural interests to help inform the commissioner on patentability, and requiring patent applicants to declare if Māori cultural interests have contributed to the invention.95 While the New Zealand Intellectual Property Office offers guidelines on identifying Māori trademarks, there has been no establishment of an official register.96 For an example of a highly detailed and successful TK database, Canada can turn to India.


In 2001, India began the Traditional Knowledge Digital Library (TKDL) project.97 It contains publicly available TK relating to over 200,000 medicinal uses for plants.98 The reasons for establishing the TKDL were to prevent the granting of patents where there has been little or no inventive step, as well as to provide patent examiners access to knowledge held in India that had formerly only been available in Indian languages.99 Since the inception of the TKDL, the registry has come to agreements with multiple patent offices located in Germany, Canada, the US, United Kingdom, Australia, Chile, Japan, as well as the European Patent Office.100 These offices, as a result of gaining access to the TKDL, are now in a position to more readily identify dubious patent claims. This process helps the patent examiners, applicants, and prospective litigants by greatly decreasing both the time and costs needed to resolve disputes.101 Additionally, having an international database such as the TKDL has caused an increase in awareness of Indian TK, thereby helping to guard against appropriation and biopiracy.102

Part 4. Implementing ABS in Canada

In the last decade, all forms of Canadian government have become increasingly engaged in modern treaties, self-government, and wildlife management agreements with Indigenous peoples.103 Through such agreements, not only are Indigenous people gaining political power, but it demonstrates the growing Canadian will to respect Indigenous sovereignty and rights. Further, Indigenous leaders from all over Canada are now meeting to make their ABS concerns known through instruments such as the Iskenisk Declaration and Petkoutkoyek Statement.104 These agreements between Indigenous peoples were created for the purpose of endorsing the CBD and NP, as well as providing further guidance to Canadian governments. If Canada is serious about implementing a Federal ABS system by 2020, there is a need for it to act quickly or else risk lapsing on yet another commitment it has made under the CBD.

Importing from Canada’s International Obligations

In its national reports for the CBD, Canada has consistently underperformed with respect to its implementation of ABS. Between the Fifth and Sixth reports, however, several significant changes occurred: the election of a new government with a progressive agenda, including the announcement of massive investment in IP legislation, UNDRIP was endorsed by Canada without qualification, and a deadline of 2020 was set in the Sixth Report for the CBD to implement ABS with respect to genetic resources.105

Further, there has been a marked change in tone, from evasive and confrontational, to constructive in the Canadian CBD reports. For example, contrast the following statements in Canada’s Second Report with a statement from its Sixth:

Has your country taken measures to ensure the fair and equitable sharing of the results of research and development and the benefits arising from the commercial and other use of genetic resources with any Contracting Party providing such resources (15(7))? (Canada’s Response): A poor question, because only part of Art.15.7 is being referenced.
Note that when Canada was deciding in 1993 whether we should ratify the CBD or not, a legal opinion stated that we were already in conformity with its obligations. It would not be consistent now to state that we were not implementing this provision. Canada consistently pays its quota to [Global Environment Facility], which is the financial mechanism cited in Art.15.7.106

Meanwhile, in a response to a question about the NP, Canada’s Sixth Report states:

Canada supports the objectives of both the Convention and the Nagoya Protocol, recognizing the significant role that access and benefit sharing plays in the Convention. […] As part of this process, the Government of Canada has been engaging Canadian provinces, territories, Indigenous communities and stakeholders to provide them with an opportunity to consider possible elements of a domestic access and benefit sharing policy and contribute to an increased understanding of the potential implications should Canada decide to accede to the Nagoya Protocol.107

Comparing the tones between the Second and Sixth reports, it is clear that Canada’s position is no longer confrontational. With Canada’s recently adopted constructive approach, taken together with the above-mentioned developments, Canada must seize on its current momentum and take legislative action. This action may come in the form of its accession to the NP, or the enactment of ABS legislation. As an original CBD leader that participated heavily in the Convention’s inclusion of its ABS-focused Article 8(j), it is incumbent upon Canada as a matter of international credibility to either accede to the NP or adopt similar guidelines into its domestic legislation. [108]

IP Reform in Canada

To facilitate the adoption of ABS in Canada, IP legislation must be overhauled. To date, and even with the newly updated Trademarks Act, there has been a complete lack of effort to accommodate TK through domestic law. There is an urgent need for new legislation to allow for Indigenous considerations and input into the IP right granting process.

Following the NZ Trademarks Act, the Canadian Trademarks Act should allow a bar to the registration of trademarks to be that the mark would be likely to offend Indigenous peoples. This would complement existing legislation, which already holds there to be a prohibition of marks bearing “any scandalous, obscene or immoral word or device”.109 Further, as suggested in the Wai 262 report, any new patent legislation should stipulate a need to declare any Indigenous interests that have contributed to the invention. Comparable to the filing of prior art option provided in Canada’s Patent Act, declaring Indigenous interests would represent a good faith step towards transparency in the patenting process and would help to address underlying trust issues Indigenous people may harbour with the Canadian Government. 110

Indigenous Advisory Committees

An additional step that may be taken to protect Indigenous IP is the formation of advisory committees. Following New Zealand’s example, the proposed committees would be composed of people who are familiar with Indigenous TK. There is strong precedent for the establishment of such committees in Canada, as the Indigenous Advisory Committee already provides expert advice to the Government of Canada on policy matters relating to the Impact Assessment System for large projects.111 The Indigenous Advisory Committee is composed of experts with First Nations, Inuit, and Métis backgrounds.112 Though having a different mandate, this committee is demonstrative of both the will and the expertise that the proposed trademark and patent advisory committees would require. In the proposed system, the trademark advisory committee would notify the Commissioner about whether a mark is derivative of Indigenous imagery or words, and advise if there is potential for the mark to offend Indigenous. For example, trademarks bearing inukshuks and other cultural icons would likely be rejected on the basis of offense due to misappropriation.113 The patent advisory committee would advise the Commissioner about whether an application is derivative of TK, including if the application is linked to TK-related biological resources. Unlike New Zealand’s policy, however, the patent advisory committee should not have a reactionary role, but actively work with the Commissioner and be allowed to provide determinative input on the validity of applications.

Establishing a Canadian Registry for TK

Establishing a Canadian registry of TK would function to protect Indigenous peoples and inform patent and trademark examiners on the validity of applications. As India’s TKDL contains over 200,000 traditional plant uses and has been a major success, it can serve as a model for a similar Canadian database. To be sure, this list would not need to be exhaustive; however, a detailed registry containing Indigenous TK would function as a method for the identification of potentially appropriating applications. Not only would such a registry inform patent and trademark examiners, but the initiative itself would provide comfort to Indigenous peoples such as the Cowichan and Inuit who feel marginalized, unprotected, and virtually defenseless against exploitation.


International instruments such as the CBD, the associated NP, and UNDRIP, all attempt to tip the scales of justice towards respecting Indigenous IP rights. Since Canada played a leading role in the negotiation and signing of the CBD, Canada’s IP practices have been far behind those of other countries. The need for Canadian IP law reform to protect TK was demonstrated through examples involving the Cowichan sweater and amauti controversies. These examples served to illustrate both the powerlessness of Indigenous groups in commercial disputes over their cultural property, and the need for legislative intervention. Despite this need, this paper has shown that Canadian legislation offers inadequate protections for TK.

In an effort to establish a roadmap for Canadian IP reform, various international agreements, as well as the laws and policies of New Zealand and India, were taken into consideration. If Canada can import from the principles of these international agreements, while learning from the laws and policies of other countries, Canada may be able to implement quick legislative reform.

Finally, taking into account the CBD and Canada’s unqualified endorsement of UNDRIP, Canada has both legally and politically binding agreements to implement a system of ABS that respects Indigenous TK. With massive investment in IP legislation, a new emphasis on Indigenous autonomy, and a goal of 2020 by which to implement ABS policies, both the pressure and momentum for change are mounting. With this momentum at its back, it is now time for the Trudeau Government to deliver on Canada’s promise to undergo legislative reform and implement a Federal ABS system. 


1 “Remarks by the Prime Minister in the House of Commons on the Recognition and Implementation of Rights Framework” (14 February 2018), online: Office of the Prime Minister <> [].
2 A term used here to denote First Nations, Métis, and Inuit peoples of Canada: The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35(2).
3 Canada, National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol 1a (ISBN: 978-0-660-29274-8) (Marion Buller) at 90, 614. [National Inquiry].
4 Statistics Canada, Indigenous peoples in Canada: Key results from the 2016 Census, Catalogue No 11-001-X (Ottawa: Statistics Canada, 25 October 2017), online: <> [].
5 National Inquiry, supra note 3.
6 Joan Kendall, “Circles of disadvantage: Indigenous poverty and underdevelopment in Canada” (2001) 31:1 American Rev Can Studies 43.
7 World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, “Traditional Knowledge – Operational Terms and Definitions” (20 May 2002), online (pdf): <> []; World Intellectual Property Organization, “Traditional Knowledge” (12 December 2019), online: <> [].
8 A few of these countries are Ecuador, Costa Rica, Venezuela, Brazil, Thailand, and Philippines.
9 Roger Chennells, “Biodiversity and Perspectives of Traditional Knowledge in South Africa” (delivered at the WIPO Seminar on Intellectual Property and Development, 2 May 2005) at 1.
10 Ibid at 3.
11 Ibid.
12 Ibid at 4.
13 Ibid at 8; “List of Parties”, online: Convention on Biological Diversity <> [].
14 For a definition of ABS, see infra page 8.
15 Roger Chennells, supra note 9 at 5.
16 UNDESAOR, “State of the World’s Indigenous Peoples”, ST/ESA/328 (09.VI.13), (2009), online (pdf): <> [] at 69.
[17] Chidi Oguamanam, “Genetic Resources & Access and Benefit Sharing: Politics, Prospects and Opportunities for Canada after Nagoya” (2011) 22:2 J Envtl L & Prac 87 at 92-93.
18 Shiva Vandana, “The Politics of Knowledge at the CBD” Third World Network in John Reid, “Biopiracy: The Struggle for Traditional Knowledge Rights” (2009) 34 Am Indian L Rev 77 at 80.
19 Ibid at 93.
20 Chidi Oguamanam, “Beyond Theories: Intellectual Property Dynamics in the Global Knowledge Economy” (2008) 9:2 Wake Forest Intellectual Property LJ 104 at 151-152.
21 Susan Scafidi, “Intellectual Property and Cultural Products” (2001) 81 BUL Rev 793 at 795.
22 World Intellectual Property Organization, “Artificial Intelligence and Intellectual Property: an Interview with Francis Gurry” WIPO Magazine issue 5 (October 2018), online: <> [].
23 Bradley Bryan, “Property as Ontology: On Indigenous and English Understandings of ownership” (2000) 13:1 Can JL & Jur 3 at 4 [Bryan].
24 Bruce Ziff, Principles of Property Law, 7th ed (Toronto: Thomson Reuters Canada, 2018) at 2. Alternatively, as proposed by Bryan (supra note 23 at 5), this conception of property can be understood as being atomistic in the sense that it assumes people are free agents, operating on a rationalistic and technological understanding of the world. Bryan goes on to describe that this technological worldview is largely focused on using things (i.e. property) to accomplish some objective, and is rationalistic in the sense that it uses a transactional model which assumes things can be owned (at 15-16).
25 Bryan, supra note 23 at 17.
26 Ibid at 18-19, 21-22.
27 Ibid at 23-24.
28 Linda Pertusati, In Defense of Mohawk Land : Ethnopolitical Conflict in Native North America (Albany: State University of New York Press, 1997) at 29.
29 Convention on Biological Diversity, “Introduction to Access and Benefit Sharing” (2010), online (pdf): <>.
30 Canada, originally a pioneer in the drive to protect TK, has in the past two decades shown less willingness to undertake international initiatives and live up to its commitments: Joel Morales, “Leader Turned Laggard? Canada, the Nagoya Protocol, and the Road Ahead” (26 October 2017), online: <> [].
31 United Nations, Convention on Biological Diversity, 1760 UNTS 79, signed 5 June 1992, (April 2000), art 1 [CBD].
32 Kerry ten Kate & Sarah A Laird, The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing, Volume 15 (London: Earthscan Publications Ltd, 1999) at 14 [The Commercial use of Biodiversity].
33 CBD, supra note 31, art 8(j).
34 Ibid, art 15.
35 Canada, 6th National Report for the Convention on Biological Diversity, UNEPOR, 2019 at 119, online (pdf) <> [].
[36] Biodivcanada, “Biodiversity Outcomes Framework” (2016) online (pdf): <> [].
37 Canada, 4th National Report for the Convention on Biological Diversity, UNEPOR, 2006, online (pdf): <> [] at 77-78; Canada, 5th National Report for the Convention on Biological Diversity, UNEPOR, 2014, online (pdf): <> [] at 96, 98. Note that in the 4th report, implementing an ABS system in Canada was “under discussion”, although initiatives by provinces and territories were independently underway.
38 Indigenous and Northern Affairs Canada, “Canada's Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples” (12 November 2010), online: <> [].
39 United Nation Economic and Social Council Permanent Forum on Indigenous Issues, Report on the Fifteenth Session, UN Doc E/2016/43E/C.19/2016/11 (2016); for speech, see: Carolyn Bennett, “Speech delivered at the United Nations Permanent Forum on Indigenous Issues, New York, May 10”, (10 May 2016), online: Government of Canada <> [].
40 UNGAOR, United Nations Declaration on the Rights of Indigenous Peoples, 61st Sess, 107th Mtg, A/RES/61/295, (2 October 2007), art 31.
41Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity” (29 October 2010), online (pdf): <> [].
42 Ibid.
43 World Intellectual Property Organization, “Ad Hoc Intergovernmental Meeting on Genetic resources and Disclosure Requirements” (15 August 2005) at 4-5, online (pdf): <> [].
44 Katharina Rogalla von-Bieberstein & Konstantia Koutouki, “The Nagoya Protocol: Status of Indigenous and Local Communities” (2011), Legal Working Paper Series, online (pdf): <> [] at 11.
45 Government of Canada, “Nagoya Protocol on access to genetic resources and benefit sharing” (1 April 2019), online: <> [].
46 For several examples, see: The Commercial use of Biodiversity, supra note 32 at 63-77; Hilary Bird, “Indigenous culture not protected in Canadian law, lawyers and academics say” CBC News (31 May 2017), online: <> []; Raymond Desmarteau, “Les parkas inuit, témoins des traditions et du present” Radio Canada International (30 December 2014), online: <> [].
47 Ypsita Demunshi & Archana Chugh. “Role of Traditional Knowledge in Marine Bioprospecting” (2010) 19:11 Biodiversity and Conservation 3015 at 3018-3020; Mar Campins Eritja, “Bio-Prospecting in the Arctic: An Overview of the Interaction Between the Rights of Indigenous Peoples and Access and Benefit Sharing” (2017) 44:2 Boston College Envtl Aff L Rev 223 at 227-229.
48 Regan Shrumm, “Knitting for our Lives: the Appropriation of Cowichan Sweaters by the Hudson’s Bay During the 2010 Vancouver Olympics” (Spring 2017) 2 ARTiculate 120 at 125 [Knitting for our Lives].
49 Ibid.
50 Brennan Clarke, “Cowichan Tribes, Bay reach deal on sweaters”, Globe and Mail (15 December 2017), online: <> [].
51 Ibid; Knitting for our Lives, supra note 48 at 121-125.
52 Knitting for our lives, supra note 48 at 145; “Nordstrom removes Cowichan name from sweaters” CBC News (2 February 2015), online: <> [].
53 Knitting for our lives supra note 48 at 145; “Cowichan tribes take on Ralph Lauren for selling knockoff sweaters”, CTV News Vancouver (7 February 2015), online: <> []; Ralph Lauren, “Cowichan-Inspired Zip Sweater”, online: <> [].
54 See Kamik’s website at: <> [] (on the website, note that, despite using an inukshuk in their trademark, they make no reference to its origin and cultural significance).
55 Betty Kobayashi Issenman, Sinews of survival: The living legacy of Inuit clothing, (Vancouver: UBC Press, 2011) at 44.
56 Ibid.
57 Phillip Bird, “Intellectual Property Rights and the Inuit Amauti: A Case Study” (paper delivered at the World Summit on Sustainable Development, 2001), Ottawa: Pauktuutit Inuit Women’s Association, 2002 at 3 [Phillip Bird].
58 Samia Madwar, “Inappropriation”, Uphere Magazine (26 June 2014), online: <> [].
59 Phillip Bird, supra note 57 at 23; Hilary Bird, supra note 46.
60 Phillip Bird, supra note 57 at 3, 13.
61 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, “Industry Canada’s responses to the WIPO Questionnaire National Experiences with the Legal Protection of Expressions of Folklore” (December 2001) in Phillip Bird, supra note 57 at 23.
62 Samia Madwar, supra note 58; see the recently overhauled (in June 2019) Trademarks Act, RSC 1985, c T-13 and the Patent Act, RSC 1985, c P-4.
63 For an additional analysis of how Canadian IP laws apply to TK, see: Assembly of First Nations, “Indigenous Traditional Knowledge and Intellectual Property Rights” (2010) at 6-11, online (pdf): <> [].
64 Patent Act, supra note 62, ss 2, 28.3.
65 U.S. Patents Act, 35 U.S.C. §§ 100-105; The Patents Act 1977, c. 37, §§ 1-4 (U.K.); Patents Act 2013, ss 14-16 (N.Z.) [NZ Patents Act].
66 Canada, Department of Indian Affairs and Northern Development, Intellectual Property and Indigenous People: A Working Paper, (monograph), written by Simon Brascoupé & Karin Endemann (Ottawa: Indian and Northern Affairs, 1999) at 25 [Intellectual Property and Indigenous People Report].
67 Ibid.
68 Ibid at 14.
69 Ibid.
70 Ibid.
71 Subject to a challenge on the basis of the idea not being independently created: Ibid at 15.
72 Paris Convention for the protection of industrial property of March 20, 1883, as revised at Brussels on December 14, 1900, at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, at Lisbon on October 31, 1958, and at Stockholm on July 14 1967, 14 July 1967, 828 UNTS 305 (entered into force 26 April 1970), art 6quinquies.
73 Intellectual Property and Indigenous People Report, supra note 66 at 22.
74 Ibid.
75 Trademarks Act, supra note 62, s 10.
76 Consumers Distributing Co v Seiko Time Canada Ltd, [1984] 1 SCR 583 at para 28, 10 DLR (4th) 161.
77 Trademarks Act, supra note 62, s 9(1)(n)(iii).
78 Intellectual Property and Indigenous People Report, supra note 66 at 20-21.
79 Inuit Art Foundation, “The IAF Announces Igloo Tag Transfer” (7 July 2017), online: <> [].
80 Intellectual Property and Indigenous People Report, supra note 66 at 20-21.
81 Andrew Armitage, Comparing the policy of Indigenous assimilation: Australia, Canada, and New Zealand, (Vancouver: UBC Press, 1995) at 8-10.
82 Treaty of Waitangi (1840), online (pdf): New Zealand History <> []; Treaty of Waitangi Act 1975, (N.Z.).
83 Ibid, ss 4-8(1˗2).
84 Trade Marks Act 2002, (N.Z.) [NZ Trademarks Act].
85 New Zealand Intellectual Property Office, “Practice Guidelines”, online: <> [].
86 NZ Trademarks Act, supra note 84, s 17(1)(c).
87 Ibid, ss 47, 73(1).
88 Ibid, s 179(2).
89 Ibid, s 178.
90 NZ Patents Act, supra note 65, s 225; Waitangi Tribunal, “Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity, Taumata” (2011), online (pdf): <> [] [Wai 262 Report].
91 NZ Patents Act, supra note 65, ss 226(a)(b).
92 Ibid, s 227.
93 Ibid at 96.
94 NZ Patents Act, supra note 65, ss 226-227.
95 Wai 262 Report, supra note 90 at 96-97.
96 New Zealand Intellectual Property Office, “Concepts to Understand”, online: <> [].
97 World Intellectual Property Organization, “About the Traditional Knowledge Digital Library”, online: < [] [About the Traditional Knowledge Digital Library].
98 Ibid; Randeep Ramesh, “India moves to protect traditional medicines from foreign patents”, The Guardian (22 February 2009), online: <> [].
99 About the Traditional Knowledge Digital Library, supra note 97.
100 Council of Scientific and Industrial Research, “Traditional Knowledge Digital Library”, online: <> [].
101 About the Traditional Knowledge Digital Library, supra note 97.
102 World Intellectual Property Organization, “Protecting India’s Traditional Knowledge” WIPO Magazine issue 3 (June 2011), online: <> [].
103 6th National Report for the Convention on Biological Diversity, supra note 36 at 15-18; Crown-indigenous Relation and Northern Affairs Canada, “Modern Treaties and Self-Government Agreements* (effective date)” (14 May 2019), online (pdf): < []; For examples of wildlife agreements, see: Government of Canada, “Recovery Strategy for the Woodland Caribou” (2012), online (pdf): <> [] and Minister’s National Advisory Panel on Marine Protected Area Standards, “Indigenous Governance and Federal Marine Protected Areas” (6 April 2018), online (pdf): <> [].
104Iskenisk Declaration on the Access, Use, and Fair and Equitable Sharing of Benefits Arising Out of the Utilization of Genetic Resources and Associated Traditional Knowledge in Canada” (28 March 2011), online (pdf): Maritime Indigenous Peoples Council <> []; “Petkoutkoyek Statement on the Access, Use, and Fair and Equitable Sharing of Benefits Arising Out of the Utilization of Genetic Resources and Associated Traditional Knowledge in Canada” (16 October 2015), online (pdf): Maritime Indigenous Peoples <> [].
105 Innovation, Science, and Economic Development Canada, “Canada’s New Intellectual Property Strategy” (2017) <> []; Innovation, Science, and Economic Development Canada, “Intellectual Property Strategy” (2019) <> []; See notes 35 and 36.
106 Canada, 2nd National Report for the Convention on Biological Diversity, UNEPOR, 2001, online (pdf): <> [] at 85 (see questions 219-221 on page 85 for more striking examples of Canada’s evasiveness on the matter of ABS).
107 6th National Report for the Convention on Biological Diversity, supra note 35 at 121.
108 Philippe G Le Prestre & Virginie Bonneau, “Canada and the Convention on Biological Diversity: Leadership Won and Lost?” (Paper delivered at the 2000 Congress of the International Political Science Association, Québec, 1 August 2000) at 10-11, online (pdf): <> [] [unpublished].
109 NZ Trademarks Act, supra note 84, s 17(1)(c); Trademarks Act, supra note 61, s 9(1)(j).
110 Wai 262 Report, supra note 90; Patent Act, supra note 62, ss 34.1(1)(2).
111 Government of Canada, “Indigenous Advisory Committee: Membership”, online: <> [].
112 Ibid.
113 As used by the Kamik Canada, supra note 54.