Canada’s New National Indigenous Economic Strategy 2022 and the Intersection with Intellectual Property

In June of this year, the Canadian Federal Government released the ‘National Indigenous Economic Strategy for Canada 2022’ (NIES).

The NIES builds on the 2015 Truth and Reconciliation Commission (TRC) report, as well as the premise that full reconciliation with Indigenous Peoples is impossible without economic reconciliation.  It serves as a blueprint to achieve meaningful engagement and inclusion of Indigenous Peoples in the Canadian economy, with the ultimate aim that Indigenous communities will achieve self-sufficiency and socio-economic equality with the rest of Canada.

Not surprisingly, the NIES recognizes that an important aspect of the global economy is the protection of Intellectual Property. Yet, under our current statutory framework, Indigenous Peoples may not have the tools necessary to fully exercise their economic rights in Indigenous-focused research and community-specific cultural knowledge. As noted in the report:

“First Nations, Inuit, and Métis people struggle with existing legal regimes to accommodate their unique cultural values. Simply integrating Indigenous Knowledge into Western legal systems for the protection of intellectual property has been resisted by Indigenous Knowledge Keepers who express concern about the appropriate use and protection of their knowledge. Many have considered knowledge-gathering activities as another form of colonization and exploitation, where this knowledge can be exposed, abused, or used against Indigenous empowerment.”

Indeed, the protection of Indigenous Knowledge has been difficult, if not impossible, through conventional intellectual property systems.  For example, Indigenous Knowledge is often already part of the public domain and therefore not eligible for protection under Western IP regimes that typically protect only new works and ideas rather than pre-existing ones. The Western concept of property is also difficult to reconcile since Indigenous cultures recognize community property vs. individual property rights. Therefore, trying to determining the ‘owner’ of Indigenous Knowledge is in many cases a pointless exercise. 

The NIES outlines two important strategic statements, with corresponding calls to action, which specifically relate to the protection of Indigenous IP rights. These are:

1. To protect Indigenous intellectual property and traditional knowledge from cultural misappropriation though the creation of an Indigenous branch of the Canadian Intellectual Property Office (CIPO), and
2. To establish institutions to support all aspects of Indigenous economic prosperity through the creation of an Indigenous Knowledge Institute focused on protecting Indigenous Rights, monitoring Indigenous-focused research, and protecting intellectual property, Indigenous Knowledge, genetic resources and traditional cultural expressions.

While the NIES does not discuss the specific role of the proposed Indigenous branch of CIPO or the Indigenous Knowledge Institute, it would be logical to conclude that part of their mandate would be to implement Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which states:

1. 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.
2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights

On June 21, 2021, the United national Declaration on the Rights of Indigenous Peoples Act received Royal Assent and came into force in Canada. This may open the way for legal instruments providing sui generis intellectual property protection to Indigenous Peoples. 

IPIC’s Indigenous IP Committee will continue to track the implementation of the calls to action identified in the NIES.