[Witness speaks in Algonquin]
Welcome to our unceded, unsurrendered Algonquin territory.
[Witness speaks in Algonquin]
My name is Monique Manatch. I am a member of the Algonquins of Barriere Lake and the executive director of Indigenous Culture and Media Innovations.
Mr. Chair and honourable members of the committee, I would like to begin by stating that Canada needs to create a fair and balanced intellectual property system that works for everyone, including indigenous peoples in Canada.
Over millennia, indigenous peoples in their knowledge systems have developed a wealth of traditional knowledge and traditional cultural expressions, which they rightly wish to protect and promote using their constitutional rights as well as the intellectual property system.
In the Constitution Act, 1982, the rights of the aboriginal people of Canada were included in section 35:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Subsection 35(1) did not create rights but rather provided for the constitutional recognition and affirmation of inherent rights created by aboriginal law. Under subsection 35(2), “'aboriginal peoples of Canada' includes the Indian, Inuit and Métis peoples of Canada.” The Canadian Charter of Rights and Freedoms also contains a key provision protecting aboriginal and treaty rights.
Neither the oral nor the written promises in the reconciled treaties indicate that the nations or tribes delegate or transfer any jurisdiction to the Queen, Canada or the provinces with respect to their traditional knowledge and traditional cultural expressions. The courts have affirmed, according to the terms of most treaties, that the British sovereign did not give Indians rights. The indigenous nations gave the British sovereign specific rights or responsibilities in their territory.
This statement gives notice to the inconsistency between the federal Copyright Act and the constitutional rights of aboriginal peoples. The Copyright Act should be amended to be consistent with the constitutional rights of aboriginal peoples.
As a first step, the act should be amended to provide and promote the traditional knowledge and traditional cultural expressions of aboriginal peoples with a non-derogation clause. A non-derogation clause is needed for the protection and promotion of traditional knowledge and cultural expressions.
Traditional arts may embody both traditional knowledge, the method of making; and traditional cultural expressions, their external appearance. Many forms of ceremonies, powwow, designs and totems of this heritage reside in the traditional custodians of the stories or images. They include oral traditions, literature, designs, sports and games, visual and performing arts, dances and songs. These manifestations carry not only the sacred knowledge but also the law of aboriginal peoples.
The purpose of this non-derogation clause is to clarify that aboriginal knowledge and cultural expressions are protected and promoted under subsection 52(1) and section 35 of the Constitution Act, 1982, and section 25 of the charter.
In indigenous communities it is usually a group or society, rather than an individual, who holds the knowledge or expressions. These groups monitor or control the use of these expressions to pass on important knowledge, cultural values and belief systems to later generations. The groups have authority to determine whether the knowledge, expressions, stories and images may be used, who may create them and the terms of reproduction. Before the copyright law was developed in the Canadian common law and statutory law, the various confederations, nations, tribes, clans and societies created, preserved and nourished this knowledge and these expressions.
At a minimum, the Copyright Act should be amended to contain a non-derogation clause to protect the traditional knowledge and cultural expressions of the aboriginal peoples or to prevent their misappropriation by others. Such a clause is necessary to prevent an aboriginal people's traditional knowledge and cultural expression from being used without their authorization and to ensure that the people in question have the opportunity to share in the benefits of such use.
Canadian common law has not defined “traditional knowledge”, “traditional ecological knowledge”, “traditional cultural expressions” or “indigenous knowledge”. In the filters of contemporary Eurocentric thought, traditional knowledge is formulated to mean the know-how, skills, innovations and practices developed by aboriginal peoples, while traditional cultural expressions are interpreted as the tangible and intangible expressions of traditional knowledge and cultures.
The intellectual property system in Canada does not protect or promote these constitutional rights nor offer any solution. It is time for federal law to be made consistent with the aboriginal and treaty rights of aboriginal people.
Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples in 2007, including article 31, which states, “Indigenous peoples have the right to maintain, control, protect and develop their” intellectual property over such “cultural heritage, traditional knowledge and traditional cultural expressions”.
Canada should begin consultations with the aboriginal peoples about how they want to protect and promote their traditional knowledge and traditional cultural expressions. They may choose to protect them by aboriginal law or by co-operating in the establishment of protective legislation that gives an intellectual property style of protection to traditional knowledge and traditional cultural expressions.
Thank you. Kitchi meegwetch for the opportunity to speak to you today.