Thank you, Madam Chair and members of the committee, for the opportunity to speak with you today.
I would like to begin by acknowledging the Algonquins' unceded territory, on which we gather today, and call upon their laws and teachings to guide us in our discussions.
My name is Scott Robertson, and I am a Haudenosaunee from Six Nations of the Grand River. I'm a practising lawyer and the president of the Indigenous Bar Association.
The IBA represents a membership of indigenous lawyers, scholars, law clerks, judges and elders from across Canada. Our mandate is to promote the advancement of legal and social justice for indigenous peoples in Canada, in addition to promoting the reform of policies and laws affecting indigenous peoples. It is on this basis that I will address the remuneration of artists, specifically those issues relevant to indigenous artists.
One of the overarching principles of the Canadian Copyright Act is to ensure that creators receive a just reward for the use of their works. Many of the intervenors who have appeared before your committee have eloquently expressed the need to fairly compensate artists for their efforts. As we have heard, there are many good reasons for doing so, and Canada has much to learn from the rest of the world to assist in accomplishing this goal.
Copyright emphasizes a western legal tradition of protecting individual property rights, and frames those rights as artistic endeavours. Not all indigenous nations share in this fundamental concept of intellectual property rights.
It is important to be clear that indigenous artists and creators are entitled to the same protections as all other artists. However, there is a further complexity to be considered when examining the endeavours of indigenous artists.
What may seem to be a purely indigenous artistic endeavour may actually be a form of medicine, astronomy, ecology or even geography. These essential teachings are sometimes recorded in stories, dance, painting and other so-called creative forms. Canada's laws need to create a space to ensure that these teachings are protected, not just for the creative and artistic pursuits and purposes but also for the knowledge and laws that are passed on.
Canada was founded on three legal traditions—common law, civil law and indigenous law. Despite this multi-juridical founding, indigenous legal traditions have been largely ignored in many Canadian laws, and in some cases indigenous peoples have been prosecuted for living their laws.
Missionaries, government agents, anthropologists, art historians, art collectors and others have all played a role in defining, subjugating and then appropriating the tangible and intangible cultural heritage of indigenous peoples.
As set out by Robin R.R. Gray, while some form of appropriation between cultures occurs at a basic level:
appropriation of Indigenous cultural heritage in the context of settler colonialism has almost always been about power—the power to produce knowledge about Indigenous cultures, the power to control the means of knowledge production and the power to set the terms of its use-value within society.
On the west coast of Canada, the appropriation of totem poles in the market economy occurred at the same time that the government agents and others were confiscating indigenous cultural heritage. Between 1884 and 1951, the potlatch ban in Canada created the conditions to support the mass expropriation of indigenous cultural heritage.
While indigenous peoples were being prosecuted for practising their laws, non-indigenous peoples were commodifying their cultural heritage, like the totem pole, for monetary gain. In so doing, the totem pole has been taken out of context through displacement, through the western curatorial practice of preservation and through the misrepresentation of its image as a symbol of primitive and universal indigeneity or as an icon of Canadian identity.
Residential schools have also had a devastating impact by impairing the intergenerational transfer of cultural expression within indigenous communities, further reducing the power to produce knowledge.
Professor Heidi Bohaker, an ethnohistorian from the University of Toronto, often shares her experiences of Anishinabe women crying when they see for the first time the repatriated items of their ancestors and an acknowledgement of their diminished knowledge and skills.
All parliamentarians, and this committee in particular, have a role to play in ensuring that those laws that may potentially impact indigenous peoples and their cultural expressions are fully canvassed and resolved with a view to advancing reconciliation and further ensuring that the power balance to control the means of knowledge is restored.
There is a concern amongst some indigenous communities that intellectual property rights in themselves may cause harm to indigenous peoples.
In order to address these historical wrongs and to foster support for indigenous artists that respects and honours their laws and concepts of intellectual property, this committee should undertake a wide and meaningful consultation with indigenous peoples. Artists who generate creative work need to be consulted to determine the kinds of protections and amendments needed to ensure them the power to control their knowledge. Failing to do so may lead to untoward and inappropriate taking of knowledge under the guise of artistic reinterpretation.
In closing, I would like to draw upon the teachings of Professor John Borrows, who, in considering whether western intellectual property rights may actually provide protection of indigenous knowledge, stated the following. I quote:
In the end, what may simplify the challenge is that the debate that must occur is not about the validity of the norms currently advanced by intellectual property law; it is about whether they should be the exclusive values brought to bear on the protection of Indigenous knowledge and cultural expression. In the context of the traditional knowledge protection debate, adopting a methodology that does not discount Indigenous values from the outset is surely the first step in avoiding procrustean outcomes that will neither avoid unfair appropriation nor help to protect Indigenous cultures.
There is much work to be done by this committee to reconcile indigenous laws and give voice and expression to those indigenous principles that protect the transfer of knowledge and art in a loving and respectful manner.
We have a path forward. We just need the courage to walk it.
The IBA would like to thank the committee for the opportunity to speak with you today, and I would be willing to take any questions.
Thank you.