The World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore – more popularly known by its acronym, IGC – is tasked with the mandate to engage in text-based negotiations for the effective protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs). The need for a special international regime of protection for TK/TCEs is based on many gaps in the global intellectual property and knowledge governance order. Specifically, the conventional intellectual property system does not adequately protect TK/TCEs. This gap has facilitated colonial and continuing neocolonial eras of unmitigated and inequitable appropriation of TK/TCEs, with no regard to the contribution of the custodians of that knowledge – Indigenous Peoples and Local Communities (IPLCs) – who are the victims of the unfair knowledge governance order. Because the intersections of GRs and TK/TCEs are at the heart of the cultural identities, worldviews, and lifeways of IPLCs, the legitimacy of the WIPO IGC – which was established in 2000 and began meeting in 2001 – rests upon the extent of the participation of IPLCs.
Over a period of 18 years, however, IPLCs have not been able to adequately participate at the IGC. One reason is the nature of multilateral negotiations at WIPO, where only ‘sovereign’ member states of the United Nations have the right to make formal proposals. IPLCs are not recognized as sovereign, and their proposals must be seconded or supported by member states to be accepted. Unfortunately, states have not been very enthusiastic in providing this support. Many of them do not even broach the idea, nor do they recognize the existence of Indigenous Peoples in their countries. Perhaps the most strategic blunder for the IGC is the setting up of a voluntary fund to which states could contribute funding, which WIPO would administer, to support the attendance and participation of IPLCs. From the outset, the attempt to fund IPLC attendance and participation at the IGC directly from the WIPO budget was blocked by the United States. Member states eventually settled on the idea of a voluntary fund. The United States, Australia, Switzerland, South Africa, and others have, in the past, supported the fund by making contributions to it. However, the voluntary fund has remained inadequate as it is frequently depleted. Courtesy of the hardly adequate fund, IPLCs are dependent on the benevolence of member states to attend and participate at this important forum in which their interests are negotiated.
The use of a voluntary fund and the extent of members states’ generosity – or lack thereof – in contributing to the fund does not demonstrate strong and effective support for the attendance and participation of IPLCs. Some Indigenous delegations who constitute the Indigenous Caucus at the IGC have benefited from the voluntary fund. Others have depended on other sources of funding to attend. The Indigenous Peoples of Canada have yet to actively participate in the IGC. Historically, Canada aligns its interests at the IGC with the United States, both generally and in the context of Group B. The Group is constituted by a segment of industrialized non-demandeur countries (those not demanding a treaty for the protection of TK/TCEs). Their interest is often not aligned with those of the Indigenous Caucus at the IGC, a situation that demonstrates a continuing lack of unity of purpose between the Canadian state and Indigenous Peoples.
In this context, Canada announced a donation of CAN$25,000 to the voluntary fund. In making that donation, at the 39th IGC on 21 March 2019, a top Canadian diplomat in Geneva made the following statement, which echoes the link between IGC and reconciliation:
“Canada recognizes the important work of this Committee to establish one or more international instruments for the protection of genetic resources, traditional knowledge and traditional cultural expressions held by Indigenous peoples and local communities.
This work closely aligns with the Government of Canada’s commitment to advancing reconciliation and renewing the relationship with Indigenous peoples in Canada, based on recognition of rights, respect, co-operation, and partnership. It also closely aligns with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
Reconciliation is a Canadian imperative for the well-being and economic health of our country. Advancing this journey takes a whole-of-government approach involving partners at all levels.
We continue the work of reconciliation, in partnership with First Nations, Inuit and Métis, as well as provinces, territories, and stakeholders, to support healthier and more prosperous Indigenous communities.
The Government of Canada understands that advancing reconciliation includes ensuring the preservation and protection of Indigenous knowledge and cultural expressions.
In furtherance of this objective, in April 2018, as part of its Intellectual Property Strategy, which helps Canadian entrepreneurs better understand and protect intellectual property, the Government of Canada committed to supporting Indigenous participation in national and international discussions about the intellectual property system and the protection of Indigenous knowledge and cultural expressions.
In implementing these initiatives, the Government of Canada is working with and providing financial support to organizations that represent Indigenous peoples in Canada to build their capacity, engage with their communities and participate in the meetings of this Committee.
Any international framework developed here at WIPO must be informed by the views of and involve the active participation of representatives of Indigenous peoples and local communities from around the world, as the holders of such knowledge and cultural expressions. Since its establishment in 2005, the WIPO Voluntary Fund has been instrumental in facilitating such participation.
The Fund cannot continue to support this important work without the help from countries and organizations around the world. It is therefore my great pleasure to announce that the Government of Canada is contributing $25,000 to the fund to help support the participation representatives of Indigenous and local communities in these important negotiations.
We look forward to continuing to work with other Member States and Observers, including representatives of Indigenous and local communities, over the course of the week to fulfill the objectives of this Committee.
Canada’s symbolic donation was warmly received by members states and the Aboriginal Caucus, and was noted in the final decision adopted at IGC 39. While encouraging Indigenous participation at the IGC, it remains to be seen whether and how Canada will align its position with the Indigenous Peoples of Canada in the event that they take on an active participatory role at the IGC. Short of its symbolism, like other gestures and the voluntary fund, such free-will donations reflect the worrisome legitimacy question at the IGC, where IPLCs cannot be guaranteed the ability to fully and effectively participate in a forum that focuses on issues at the centre of their quest for justice, equity, and self-determination.