Can Treaty Rights Protect Intellectual Property?
It is no secret that a gap exists when it comes to protecting certain forms of Indigenous intellectual property (IP). While conventional IP tools are excellent in ensuring contemporary songwriters, inventors and brand owners keep control of what they make, these tools are less helpful when it comes to Indigenous traditional knowledge and cultural expression.
From art and fashion, insights on herbal medicines, ownership of crests and symbols, geographic knowledge, to spiritual practices and more, Indigenous communities hold a vast array of IP that find their origins in centuries past. Oftentimes, this IP is subject to local rules and expectations about how it can be used, and who is entitled use it. Enforcing these rules is another matter. The ideal legal solution to this problem should, at least in part, originate in Indigenous law yet be enforceable in Canadian courts.
One made-in-Canada solution, recently proposed in IPIC’s Canadian Intellectual Property Review, is to invoke the Constitution as a source of legal protection. Similar to the way in which First Nations have made title claims to traditional lands, it may be possible for Indigenous groups to assert IP rights based on Aboriginal or treaty rights. This solution could be a positive step forward toward reconciliation.
The Constitutional Solution
Section 35 of the Constitution Act, 1982 “recognizes and affirms” existing Aboriginal and treaty rights in Canada. This section has been used in courts to enforce rights to fish, hunt, and move goods across borders, and to assert rights over traditional lands.
Aboriginal title to land arises out of the recognition that “when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries” (Calder et al v Attorney-General of British Columbia,  SCR 313). Where Indigenous groups have the same historic relationship with their IP, it is reasonable to argue that the same basis for a claim could apply.
Section 35 extends to more than just land. It also protects practices, customs and traditions “integral to the distinctive culture of [an] aboriginal group” (R v Van der Peet,  2 SCR 507). This can include a right to self-regulate practices that were “the subject matter of aboriginal regulation” in the past (R v Pamajewon,  2 SCR 821). If community leaders have always had a veto on who can represent holy places in paintings or other art, or if it has always been known that certain traditional stories were the collective property of the community, a basis may exist to enforce these rules in court.
Determining what treaty or Aboriginal rights might apply depends greatly on history and the facts. It is also complicated by intervening legal questions, such as whether the right was extinguished in the time before the constitution came into force. Despite their challenges, treaty or Aboriginal rights can be an important potential source of IP rights, and should be considered as an option in each litigator’s IP toolbox.
As the Truth and Reconciliation Commission defines it, reconciliation “is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” Section 35 is a useful tool in this regard, as it allows the legal systems of Indigenous and non-Indigenous people to complement one another.
At present, the potential to use Section 35 in an IP context is still untested. It is also not clear how far the “duty to consult” Indigenous peoples extends when governments regulate the IP space. Addressing these issues will take significant historical research, as well as brave claimants and litigators willing to bring test cases to the courts.
For more information on how a Section 35 claim might play out in practice, read “Constitutionalized Rights to Indigenous Intellectual Property” in volume 35 of the Canadian Intellectual Property Review.