Starting From the Land: The Case for Indigenous-led Approaches to Canada’s ABS Gap

by Thomas Nichini

Introduction

As the second largest landmass on the planet, Canada contains a vast number of biomes with numerous plant and animal genetic resources (“GRs”) with applications for commercial, industrial, pharmaceutical, military, and conservation purposes. The race to discover new technologies has led Canada to become a leader in biotechnology despite lagging behind many countries in legislating around the topic. This legislative gap leaves the door wide open for researchers and commercial groups to engage in bioprospecting (i.e. searching for and harvesting GRs). While the challenges to state sovereignty due to Indigenous land claims are frequently discussed and litigated, the topic of Intellectual Property (“IP”) rights to GRs by Indigenous communities within Canada receives less attention.

Since time immemorial, Indigenous Peoples worldwide have learned about and harnessed genetic resources, storing their information within associated traditional knowledge (“TK”). TK may arise from cultural expressions such as teachings, stories, community knowledge, and art; it is often part of a broader, interconnected worldview linked with collectivist beliefs not just to the community but to other beings and the land. The relational components of TK come with responsibilities that form laws, governance, and social structures, which can conflict with the property-based approach put forward by dominant IP regimes. In response, states around the world have joined in the protection of GR and TK through instruments like the “Convention on Biological Diversity”, the “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization” and the “United Nations Declaration on the Rights of Indigenous Peoples.”¹ However, the nature of international law leaves states with the authority to implement their own legislation around Access and Benefits Sharing (“ABS”) of GRs and TK with mixed results. Many of these issues stem from reconciling the fundamental differences between TK and the Eurocentric philosophies underpinning the global IP regime that focuses on individual ownership and contribution, as well as novelty. While consensus on protecting TK exists, this does not equal consensus on how it should fit within current systems for IP protection.

In Canada, there are no national or regional frameworks for GRs, TK, and ABS, creating a lacuna ripe for bioprospecting and biopiracy. Currently, Canada’s only ABS laws and practices exist through a permitting system for its national parks and research obligations for universities and institutes.² More broadly, Aboriginal law and the Duty to Consult could be used to carve out Indigenous IP rights but – beyond their numerous other failures – present a piece-meal approach to rights that is unclear on consent for both providers and users of GRs and TK. Increasingly, Impact Benefit Agreements (“IBAs”) with Indigenous communities arising from federal, provincial, and territorial legislation or private negotiation also provide avenues for protection and will be explored later. Although literature exists on Canada’s gaping ABS problems,³ most research into the topic focuses on top-down legislation as IP is largely regulated at national and international scales. With thirty years of international discourse to guide ABS but an empty legal map domestically, Indigenous peoples in Canada may – once again – need to be both the victim and saviour of colonialism by crafting bottom-up approaches that offer options for the protection of GRs and associated TK. As noted by Kai-Phillips, ABS laws in Canada have “ramifications for fairness, equity, justice, reconciliation, ethics and power relations with regard to Indigenous peoples.”⁴

This paper presents such grassroots approaches by gathering recommendations from across the literature to showcase opportunities for Indigenous-led ABS protection of GRs and TK. In the first part, the paper lays out the conceptual map by discussing traditional knowledge, genetic resources, and access and benefit sharing. In the second part, I present an overview of the current international ABS order to sketch Canada’s legislative gap and show where bottom-up approaches might respond. Third, I sketch out – a non-exhaustive – list of problems that arise from Canada’s current ABS regime. Lastly, recommendations are put forward that address what Indigenous groups might do without relying on domestic or international law.

I. Lay of the Land: Traditional Knowledge, Genetic Resources, and Access And Benefit Sharing

1. Traditional Knowledge

Over the last two hundred years, states have sought to harmonize intellectual property regimes to protect the rights of creators and the public across geographic boundaries. These regimes, much like many of the borders that they purport to transcend, are largely the product of colonial states and, as such, often fail to capture non-Eurocentric conceptions of property rights.⁵ As such, the current IP regime focuses on the interests of individuals against those of the public, attempting to promote the sharing of innovation and creation through temporary, monopolistic property rights. The economic focus of this system can run at odds with different conceptions of knowledge, especially where it associates rights, ownership, and obligations collectively. Internationally, recognition of the broad, negative impacts of colonialism on Indigenous peoples is increasing, including the displacement of their (often) more collectivist IP rights and regimes. The phrase “Traditional Knowledge” arises from the attempt to commonly define how knowledge and its associated property rights exist within the legal systems of Indigenous peoples. It is at the centre of the ongoing international debate on how to understand Indigenous peoples and local communities within IP regimes and unsurprisingly, no singular definition exists.⁶ While potentially neo-colonial in its juxtaposition of Indigenous knowledge as non-modern and also risking creating a pan-Indigenous conception of IP, TK is the most recognized term and so I will use it here.

Agreed upon components of TK are that it is intergenerational, held by the community, and frequently forms spiritual and cultural identities that are often linked to land.⁷ Current definitions include tangible and intangible resources, cultural practices, skills, and knowledge contained within innovations. Examples include the medicinal properties of specific plants, the ecosystem interactions between species, or the history of treaties. Communities often hold this knowledge within Traditional Cultural Expressions (“TCEs”), such as stories, music, dance, language, art, and material cultures. This contrasts with Eurocentric knowledge traditions that keep information predominantly within institutions like libraries, universities, research institutes, private corporations, and government departments.

An additional subsect of TK is Traditional Ecological Knowledge (“TEK”), which is sometimes used when dealing with ecological concepts like plant knowledge, biodiversity, genetic resources, and Access and Benefits Sharing. It has been defined as “a collective understanding attained over long periods of time, in particular places, of the relationship between a community and the Earth.”⁸ However, the distinction between TK and TEK may largely be arbitrary, particularly to Indigenous peoples who often view their knowledge, cultures, and existence as coming directly from the land.⁹ Borrows notes that:

You cannot work with Anishinaabe law, health, spirituality, economics, politics, culture or any other part of our lives without seeing how deeply they are connected to our knowledge of the natural world. The same is generally true of Indigenous peoples in many parts of the world.¹⁰

This broader view sees TK as a “worldview or cosmology (…) a way of seeing and interacting with the natural world.”¹¹ The often inseparable connection between Indigenous knowledge of the natural world and Indigenous law emphasizes its importance in determining formal relationships. Indeed, Okediji notes that TK “therefore embodies a system of governance… with constitutional features including separation of powers and an allocation of rights and duties among members.”¹² This view of TK as informing how Indigenous communities use knowledge to define relationships echoes the Royal Commission on Aboriginal Peoples’ definition of TK as concerning the relationships of all “living beings (including human beings) with one another and their environment”.¹³ A simplistic view of TK often focuses on the substantive information that it contains – e.g. a specific traditional medicine or ecological interaction – while missing that for Indigenous peoples, this knowledge can contain broader lessons and obligations that form customs and systems of governance.¹⁴ These relational and collective components of information can be defining characteristics that separate Indigenous IP regimes and worldviews from Eurocentric ones. However, they may simply represent the actual interconnectivity that normally exists between knowledge production, storage, and ownership to all other things.

2. Genetic Resources

Genetic Resources can be defined as “[g]enetic material of actual or potential value, which includes any material of plant, animal, microbial or other origin containing functional units of heredity.”¹⁵ They exist both within and outside the scope of TK, frequently appearing in policies surrounding food and agriculture. In Indigenous communities, GRs are associated with related TK.

3. Access and Benefit Sharing

The concept of Access and Benefit Sharing (“ABS”) arose through international negotiations addressing “the injustice in the inequitable use of genetic resources and associated Indigenous knowledge.”¹⁶ ABS stems from the understanding that biodiversity, including genetic resources, is the “heritage of humankind” and so should be shared and preserved for all while respecting the underlying interests of those who steward it.¹⁷ This balancing requires equitable and fair frameworks for distributing benefits that have arisen in international instruments like the CBD and the Nagoya Protocol. Ultimately, ABS seeks to promote both justice and equity while ensuring biodiversity conservation and sustainable use.¹⁸ In the Canadian context, it echoes principles of reconciliation in the context of Aboriginal rights and the duties that arise for the Crown to ensure fair dealings in the case of infringement.

II. International and National Context of ABS

While mostly implemented through domestic law, intellectual property is internationally harmonized through a history of conventions and treaties dating back to the end of the 19th Century that continues through the work of the World Intellectual Property Organization (“WIPO”). The international legal system undergirding IP regimes is primarily the product of multi-lateral relations between European states who participated in colonialism and “co-opted [Indigenous peoples] into that order.”¹⁹ As a product of such relations, the current IP regime uses a top-down approach, centres itself on European views of property rights and individuality, and is both Eurocentric and anthropocentric. Despite efforts by WIPO, the system struggles to consider Indigenous worldviews and rights (explored later).²⁰ Nonetheless, these international and national IP regimes provide the dominant frameworks and language to which any bottom-up approach might respond. This section outlines the international agreements (and Canada’s relationships to them) framing Indigenous TK, GRs, and ABS.

The primary international instruments for ABS implementation are the 1992 “Convention on Biological Diversity” (“CBD”) and the 2010 “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization” (“Nagoya Protocol”). In addition, both the “Nagoya Protocol” and the “United Nations Declaration on the Rights of Indigenous Peoples” (“UNDRIP”) account for some protection of TK. Other international instruments also shape definitions of ABS, including the “Agreement on Trade-Related Aspects of Intellectual Property Rights” (“TRIPS”), the “International Treaty on Plant Genetic Resources for Food and Agriculture” (“ITPGRFA”), and the work of the World Intellectual Property Organization Intergovernmental Committee (“WIPO-IGC”) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. While not specifically aimed at IP rights, UNDRIP provides numerous articles aimed at promoting equitable relationships between Indigenous peoples and states.

1. The Convention on Biological Diversity

The “Convention on Biological Diversity” (“CBD”) is the dominant international legal instrument governing biodiversity. It seeks to promote: (1) the conservation of biological diversity; (2) the sustainable use of the components of biological diversity; and (3) the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.²¹ Since 1992, 196 parties have ratified the CBD representing a global commitment to sustainable development. The Convention requires that parties, like Canada, make efforts to preserve biodiversity and implement the specific articles of the agreement through policy, administration, and legislation. More directly, parties need to establish regimes for fair and equitable access and benefit sharing to GRs and biotechnology.

The CBD creates an obligation that parties recognize and consider Indigenous peoples and local communities under Article 8(j):

Each contracting Party shall, as far as possible and as appropriate:
Subject to national legislation, respect, 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.

This provision is supported by other articles related to protecting customary uses from traditional practices, ensuring prior informed consent and mutually agreed terms for genetic resources, and creating fair and equitable ABS regimes.²²

To clarify how Article 15 on genetic resources should be interpreted in light of other articles, the Conference of Parties to the CBD (COP 6) gathered in April 2002 to create the “Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilisation” (“Bonn Guidelines”). The Guidelines emphasize both the importance of including and supporting Indigenous and local communities in ABS and respecting the connection and rights of these communities to GRs and associated TK. However, neither the CBD nor the Bonn Guidelines specifically mention how the distribution of ownership or property rights should function.

Problematically, Article 15(1) of the CBD asserts the “sovereign rights” of states over natural resources and empowers them to use national legislation to enforce those rights. This suggests a similar perspective to Canadian jurisprudence on Aboriginal rights where claimants must carve out a right over presumed sovereignty by the Crown. Like other international instruments related to TK, this glosses over underlying title claims frequently at the core of Indigenous struggles.²³ Indeed, Nichols points out that in many colonial states, “the constitutional basis of the domestic legal framework is contested and so cannot serve as a secure legal foundation for an ABS regime.”²⁴ If the basis of international legal tools – e.g. the CBD, the “Nagoya Protocol”, and UNDRIP – relies on the assumption of state sovereignty, they may not provide the best legal platform for those wishing to challenge that assumption.

2. Nagoya Protocol

The “Nagoya Protocol” arose out of the 10th Conference of the Parties to the CBD in 2010 with the key objective of implementing the CBD’s third objective: the equitable and fair access and sharing of benefits between providers and users. It is the most robust international instrument on TK, GRs, and ABS that “aims to provide legal certainty and transparency for both providers and users of genetic resources by establishing predictable conditions for access to genetic resources.”²⁵ It establishes defensive protections against biopiracy by disallowing patent applications and further seeks to help Indigenous and local communities benefit from TK through emphasizing customary laws and requirements for prior, informed consent and mutually agreed terms for ABS.

Canada is not a party to the “Nagoya Protocol” and has “no single, comprehensive access and benefit-sharing (ABS) system in place.”²⁶ Interestingly, Canada spent almost a decade conducting extensive ABS consultations with Indigenous communities leading up to the negotiation of the “Nagoya Protocol”, even hosting the Secretariat to the CBD in Montreal.²⁷ Despite its progressive history in developing the “Nagoya Protocol”,²⁸ Canada fought to: (1) use the language of “local communities” rather than Indigenous Peoples within the protocol and (2) exclude the mention of UNDRIP in the preamble. The use of “local communities” places the concerns of local, non-Indigenous members on the same level as distinct Indigenous rights (and the subsequent obligations from States). At the ABS Canada Focus Groups following the “Nagoya Protocol”, Indigenous participants expressed frustration over their lack of inclusion in actual negotiations and its misalignment with their worldviews.²⁹

Under its CBD obligations, Canada must still implement an ABS framework regardless of its position on the “Nagoya Protocol”. However, Canada lags behind many states in implementing protections for TK and GRs through ABS.³⁰ To track progress, the CBD at its 10th conference adopted the “Strategic Plan for Biodiversity 2011-2020”. Parties agreed to develop and implement Aichi Biodiversity Targets that track CBD and “Nagoya Protocol” implementation. After facing criticism for completely ignoring its CBD obligations towards Indigenous peoples in its targets,³¹ the provincial, territorial, and federal governments released the “2020 Biodiversity Goals and Targets for Canada”.³²Two targets directly address Indigenous concerns: Target 11 aims to ensure customary use by Aboriginal peoples and Target 15 seeks to respect and promote TK and use it to inform decisions. However, even biodivcanada, the national clearinghouse that is the focal point reporting to the CBD, noted the lagging implementation of Target 15.³³ The target falls short of stating a clear position on ABS and there is no evidence that any progress has been made two years after the strategy’s end year.

3. WIPO

As the primary forum for international agreements, debates and disputes of IP, the World Intellectual Property Organization offers potential avenues for Indigenous rights related to GRs and TK. WIPO’s Intergovernmental Committee (“WIPO- IGC”) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore plays a limited but potentially important role in facilitating “a normative process among Member States aimed at developing an international legal instrument” for GR, TK, and Folklore.³⁴ They also provide capacity-building seminars helping Indigenous groups navigate the current IP regime and potentially use it for protecting their knowledge.³⁵ Most importantly, the committee includes Indigenous participants from around the world and gives them access to various UN bodies, such as Commissioner for Human Rights, the CBD, the World Trade Organization, and others.³⁶

III. Problems with the Current ABS Regime

While certainly non-exhaustive, this section sketches out some of the current problems with Canada’s ABS situation. The interconnected nature of these problems makes the distinctions below partially futile; however, the overarching theme is that Canada’s non-existent ABS regime creates uncertainty for all parties and provides limited protection for Indigenous people.³⁷

1. Existing International and National IP Regimes Succumb to Failures

Even at their most robust implementation, international and national IP regimes struggle to respond to Indigenous contexts with clear frameworks that include GR and TK. As noted by the Assembly of First Nations, “First Nations have been struggling with existing legal regimes to accommodate their unique cultural values.”³⁸

The current Canadian IP regime – whether for copyright or patents – fails to capture most TK and GRs due to requirements based on Eurocentric values centred around original, novel, and individual innovations. While copyright is relevant to TK and how it is stored in cultural expressions, most discussions of the topic focus on patents due to the high-value nature of pharmaceutical, commercial, military, and industrial uses.

Section 5(1) of the Copyright Act includes the requirement of originality.³⁹ In CCH Canadian Ltd v Law Society of Upper Canada,McLachlin CJdefines originality as, inter alia, a work that is more than a mere copy and requires that “the expression of an idea is an exercise of skill and judgment.”⁴⁰ The concept of originality contrasts with how an Indigenous group may store information intergenerationally and collectively through the repeated “copying” of an expression of an idea. In contrast to European views, the very ability to repeat TK through cultural expressions, e.g. through telling a story or using a pattern, might be the right that an Indigenous group is trying to protect.⁴¹

WIPO member states, including Canada, use patents to protect new and useful inventions by requiring applicants to demonstrate novelty by comparison with all “prior art”. In Canada, novelty arises under the Patent Act through both the definition of invention as a “new” art in Section 2 and in Section 28.2(1), which bars protection if the invention has been previously disclosed. TK often falls short of such a “prior art” disclosure requirement due to previous discussion by researchers and the public nature of TK due to its intergenerational and collective nature within an Indigenous group.⁴² Patents in the field of GRs and biotechnology are particularly relevant for Indigenous communities as they offer both protection of the knowledge and the potential to benefit from its disclosure.

Patents offer a “quid pro quo”: in exchange for sharing the invention, the patentor receives a monopoly on its use – often for twenty years, like in Canada. This trade-off means that if you do not patent a secret, someone else can.⁴³ This pressure to disclose is seen as a positive force known as the “public-welfare bargain” that seeks to reward both innovation and knowledge-sharing. Due to the history of researchers disclosing TK, a large amount of Indigenous prior art exists acting as defensive protection for those who might try to patent it. However, this means that Indigenous peoples can no longer benefit from any economic or legal benefits from that TK. Okediji notes the absurd result: third-party claims to what is reasonably understood to be the intellectual contribution of an Indigenous group push the TK into the public domain where no one may claim rights.⁴⁴ “Protection” here results in further dispossession. This further plays into the idea that TK is part of a “world commons” with no specific belonging but to mankind itself. This anachronistic view seems to see TK as something of the distant past, confusing its different relational and collective features as a complete lack of boundaries.

2. The Duty to Consult: An Unclear Framework for TK and GRs

With the ultimate goal of reaching reconciliation through negotiations while protecting unproven Aboriginal rights, the Duty to Consult is Canada’s primary (and most disputed) means for claiming rights.⁴⁵ The Duty to Consult provides Indigenous claimants with a defensive mechanism to demand some level of consultation and potential accommodation if a project might infringe on their rights and title. The heavy evidentiary burden, expenses associated with a trial, and the potential for pseudo-rights extinguishment through an adverse ruling are failures on the Indigenous end of this framework.⁴⁶ In the context of ABS, evidentiary components to prove a protectable right to GR and TK may prove impossible. In addition, the SCC has severely limited the commercial dimension of Aboriginal rights.⁴⁷ Moreover, consultation and accommodation exist on a spectrum and so this framework potentially offers limited opportunities to provide input and derive benefits depending on the extent of the duty found.

Confusion around the Duty to Consult and its obligations for consent push Indigenous groups to reach agreements with project proponents outside of government processes through Impact Benefit Agreements (“IBAs”).⁴⁸ This will only be exacerbated with Canada’s implementation of UNDRIP. In many ways, free, prior informed consent on mutually agreed terms – particularly if seen as a veto – may actually provide a simpler, clearer foundation for negotiation than the current framework of sliding duties.

3. Insufficient Protection Damages Communities

TK can play an important role in organizing the social relations of Indigenous communities by determining who has access to what knowledge and what roles and responsibilities might be associated with it. Inadequate protection of TK, therefore, can result in relational, collective, and developmental harms to the community.⁴⁹ Such issues can cause rifts that damage social relations and governance structures. For example, someone sharing a clan weaving pattern or harvesting location without following protocol and consulting the elder that shared that TK may both harm that relationship but also the laws of that community. On a broader level, these types of TK issues can bring instability to a community. Decisions on how and whether to share TK can divide community members. This could arise where governance is split between Band Councils and traditional leadership who may share different opinions of who can grant access and receive benefits. Lastly, inadequate TK protection may disrupt “conditions for future knowledge production.”⁵⁰ For example, in many Indigenous communities that rely on oral histories, information is guarded and passed down through specific procedures connected with governance and customary laws; disclosure of TK may result in information losing both its context and pathways for continual production.

4. Canada Has Not Implemented an ABS Regime

Despite being a signatory to the CBD, Canada has not fulfilled its obligation to implement an ABS regime. Despite years of Indigenous participation helping draft Canada’s international approach and continual participation in shaping international instruments like the “Nagoya Protocol”,⁵¹ no framework exists to ensure fair and equitable access and benefit sharing. As noted in the previous problems, the lack of adequate frameworks to protect GRs and associated TK leaves Indigenous communities vulnerable to harm with the flawed IP regime and Duty to Consult.

IV. Recommendations

1. Indigenous GR and TK Registries

A problem with current TK protection within IP regimes is the requirement of formal documentation that makes it simple for third parties to claim proprietary rights without options for Indigenous groups to challenge.⁵² While oral history is increasingly accepted in Canadian courts,⁵³ patent applicants can easily prove that no prior art exists when limited to no paper documentation exists, putting cultures that rely on oral histories at a disadvantage. As a response, databases or registries for TK and GRs can provide for the defensive protection of IP rights by presenting proof of prior art to stop a patent claim.⁵⁴ Countries such as India, China, Brazil, and Peru have all created GR and TK registries.⁵⁵ Through its National Institute for Defence of Competition and the Protection of Intellectual Property-Traditional Knowledge of Indigenous Peoples, Peru uses a decentralized, autonomous organization to run multiple national and regional registries that specialize in placing Indigenous knowledge within the public domain or in a confidential database.⁵⁶ While this is a national model, Indigenous organizations in Canada could develop their own independent or collective TK databases.⁵⁷ Labelling initiatives may help track knowledge and ensure appropriate accreditation to a TK’s source of origin.⁵⁸ Discussions of such databases in Canada have, however, met mixed reactions from Indigenous groups; despite counteracting knowledge loss from elders passing, they potentially remove the required context and training from an elder for gaining that knowledge.⁵⁹ Moreover, concerns exist about how to govern such databases and ensure their security.⁶⁰ In addition, the database raises questions as to whether stored TK in it becomes some form of public property or remains private, and whether disclosure amounts to losing property interests.⁶¹ Despite concerns, Indigenous-run TK and GR registries offer the strongest defensive protection against exploitation given the current IP regime and ABS legislative gaps. Organizations can mitigate fallbacks by utilizing confidential databases or relying on better technology to improve governance, security, and education.

2. Include TK and GRs in Title Assertions and Claims

The inclusion of GRs and associated TK into title claims provides a legal foundation for the growth of Indigenous law and assertion of title. Embedded into TK is the same definition provided by Cornell for an Indigenous constitution: “a set of basic principles and rules by which members of a community cooperate, make decisions, engage with each other and the world around them, distribute and exercise authority, and set about trying to get things done.”⁶² For example, a plant medicine may define relationships between elders and other community members, responsibilities for harvesting and sharing, and give order to the seasons and time. By including GRs and associated TK as a fundamental component of title rights, communities may better protect them.⁶³ Okediji notes limited Australian successes in pushing this forward.⁶⁴ In its Constitution, for example, the Haida Nation asserts its cultural and intellectual property rights that would include GRs and TK.⁶⁵

3. Leverage Pre-existing IBA Processes to Include ABS for TK and GRs

In comparison to ABS, examples and research of Impact and Benefit Agreements in Canada are more pervasive and thereby offer insights into how ABS frameworks could be implemented. As a part of provincial, federal, and territorial environmental law, IBAs are a standardized part of resource development in Canada.⁶⁶ They are premised on an Aboriginal group restricting the exercise of their rights and title by granting access to a resource; in exchange, the group formalizes relationships between the parties and negotiates for enhanced outcomes via community investment and mitigation, while also legitimizing their claims to rights and title.⁶⁷ IBAs typically focus on large-scale extraction or energy projects while ABS centres around creating equitable and fair outcomes when Indigenous groups grant access to GRs and TK. In many ways, they can be seen as a sub-type of IBA.

Caine & Krogman note the inherent power imbalances between Indigenous groups and project proponents question the viability of IBAs to fully benefit Indigenous communities.⁶⁸ However, developments like the First Nations Fiscal Management Act and the First Nations Fiscal Management Board increase the relative bargaining power of First Nations Band Councils to leverage capital markets and become larger players in project developments.⁶⁹ Due to the politically divisive nature of large-scale resource extraction and energy projects, IBAs, combined with Canada’s current model for consultation, can create issues within Indigenous communities surrounding who must be consulted and how benefits will be distributed. IBAs are private agreements and can suffer from transparency issues, particularly where the larger impact of a project affects broader society.⁷⁰ Although a particular Indigenous community may entirely approve a project directly affecting their rights and title, surrounding Indigenous groups, other Canadians and even the international community may not. The recent issues surrounding IBA consultation with Wet’suwet’en Band Councils versus hereditary governance⁷¹ and the outcry over Fairy Creek logging by broader Canadian and international society provide examples of the limits that IBAs face.⁷² In the context of GRs and TK, many different Indigenous communities may hold equally strong claims to that resource. One community may have come collectively to an ABS agreement, gaining all the benefits, and removing patentable protection for another Indigenous group with the same or similar TK and GRs.

Although the Duty to Consult may only force the Crown to reach consent in limited circumstances, IBAs often rise to higher standards (such as those from international instruments like UNDRIP and the “Nagoya Protocol”) by implementing free, prior informed consent on mutually agreed terms. Both Indigenous communities and project proponents may favour IBAs for this reason. However, Papillon & Thierry note that IBAs may result “in a truncated form of consent premised on a cost-benefit logic that does not necessarily reflect community concerns and ontological views of land and natural resources development.”⁷³ This translates to the ABS setting, where the financial reward for disclosure may misalign with customary laws for the secrecy of plant-based treatments by medicine keepers.⁷⁴ In addition, Indigenous women may play particular roles in their communities related to resource and knowledge protection but may also face barriers to participation in Indigenous governments and IBA negotiations due to colonialism.⁷⁵ It follows that ABS modelled after IBAs must also consider the disproportional impact of extractive projects on Indigenous women and 2SLGBTQIA+ people, as well as their particular roles within Indigenous groups.

4. Community ABS Focal Points

The creation of community ABS focal points can create clear processes for users hoping to access GR and TK and help Indigenous groups enforce (or develop) their protocols.⁷⁶ Just as parties to the “Nagoya Protocol” have Component National Authorities and Focal Points that monitor GRs and provide for ABS, Indigenous governments within Canada can develop their own to fill in the current legislative gap. This allows them to remain in control of community protocols on access; in the IBA context, both the Squamish Nation and the Sipekne’katik First Nation have seen success in forcing project proponents and colonial governments to engage with their own processes for consultation.⁷⁷ Perhaps, this model could be further applied to parties wishing to access GR and associated TK.

5. Assertion of Indigenous Law Related to IP

The growth of Indigenous legal orders and governance systems may allow groups to develop sui generis IP rights built on their right to self-determination and exercise of self-government. Many Indigenous peoples agree that relying on the very state that engages in genocide and patterns of colonialism to resolve issues creates further issues of paternalism.⁷⁸ Moreover, the assertion of Indigenous laws and government structures promotes original nation-to-nation relationships by obliging proponents and governments to engage with these Indigenous governance systems. In Canada, this enhances the fundamental right to self-determination recognized by the federal government.⁷⁹ This would further promote Canada’s obligations from international instruments like UNDRIP, the CBD, and the “Nagoya Protocol” that call for the respect, promotion, and maintenance of self-government.

The door is wide open for the enforcement of customary law and the building of contemporary legislation surrounding TK. As TK can also be a source of law within Indigenous communities, it may already have legal implications for developing ABS regimes. Chartrand explains that in the Dene story of “The Meeting between Humans and Animals” a “treaty” formed where animals agreed to share their gifts with humans and thus created reciprocal obligations for humans towards their stewardship.⁸⁰ Using stories associated with TK as a source of law may further be complemented by the introduction of meta-principles into Indigenous IP frameworks. Rather than a top-down, copy-paste framework for ABS to a resource proposal via current models, Indigenous legal orders may derive law from the TK connected to a specific GR. In this way, the land itself can function as a source of law, where a specific medicinal plant, for example, may inform who may and may not access it, and how the benefits arising from it create obligations. Implementing Indigenous IP regimes in this way can also promote the broader adoption of Indigenous law into the Canadian legal system by forcing governments and courts to engage with it directly.⁸¹ This complements the assertion of TK as part of title claims and the development of TK registries and ABS Focal Points.

Conclusion

Ultimately, developing a system to adequately protect the genetic resources and traditional knowledge of Indigenous peoples will require respect, trust, and cooperation with legal orders by all parties, regardless of whether the system comes from the top down or the bottom up. In the fields of IP rights related to GRs and associated TK, international instruments—like the CBD and the “Nagoya Protocol” – and the bodies that inform their development—like WIPO – dominate the legal landscape providing both a history and framework for recognizing rights. Unfortunately, like other international rights instruments such as UNDRIP, domestic integration can run into issues of legislative neglect and misinterpretation.

Currently, the Canadian ABS context is a legislative vacuum with domestic mechanisms for asserting rights limited to dysfunctional Aboriginal rights tests and the current IP regime. Both of these systems, struggle to respond to the particular position of GRs and TK. The Duty to Consult provides legal uncertainty around the level of consultation owed and what consent means, while the collective and relational components of TK grate against the Eurocentric, philosophical underpinnings of modern IP rights. This places Indigenous groups wishing to assert rights to GRs and TK or produce ABS agreements with researchers and project proponents in a precarious legal position.

Clarification of how to approach GRs and TK ultimately benefits Indigenous Peoples, states, as well as non-Indigenous individuals and corporations; a knowable legal system allows all parties to respond and position themselves accordingly. Unfortunately, Canada has not fulfilled its international obligations by implementing an ABS framework leaving Indigenous Peoples to respond with their own solutions. Building a bottom-up approach to ABS that protects GRs and TKs relates to the broader goals of reconciliation and decolonization that are actively restoring Indigenous legal orders, knowledge systems, and governance. Interestingly by approaching the problem from a grassroots perspective, it becomes clearer that potentially the grass itself, its GRs, and the expressions it has inspired may offer lessons and solutions for Indigenous communities and the broader IP system.

Endnotes