The Nagoya Protocol on Access and Benefit-sharing (ABS) entered into force on 12 October 2014 and is of relevance to many bio-based sectors like agriculture, botanicals, cosmetics, food and beverage, industrial biotechnology, and pharmaceuticals. Greater legal certainty and transparency can help providers and users of genetic resources (GR) and associated traditional knowledge (ATK) by creating predictable conditions for access to GR and benefit-sharing when GR and ATK leave the provider – Indigenous Peoples in particular.
The Protocol has been ratified by 78 countries, including many of the planet’s most biologically and culturally diverse countries. It has also been ratified by the EU and Switzerland, but not Canada or the US. Canada, however, is a Party to the Convention on Biological Diversity (CBD), adopted at the Rio Earth Summit in 1992, and under which the Protocol was negotiated. Notwithstanding its failure to ratify Nagoya, Canada is therefore loosely bound by provisions on ABS and ATK.
In the post-colonial era, significant tension exists between the biodiverse and culturally diverse ‘developing’ world and the free market economies of the ‘industrialised’, ‘Western’ or ‘developed’ world, where most of the globe’s research and development, product transformation, and product commercialization happens. Specific concerns exist over the appropriation of ‘non-Western’ GR and oral ATK. The intellectual heritage of Indigenous Peoples in Canada is threatened by the lack of legal protection, and Merle Alexander, a leading indigenous law practitioner, has stated that “in every single area of IP law, there is an area it could be reformed.” In intellectual property (IP) policy debates, the question comes down to whether ‘first to patent’ should predominate over ‘first to invent’ (which recognizes oral ATK). Canadian courts recognize oral history presented in Indigenous rights cases under the Charter, but the Canadian patent system must recognize ‘first to invent’ predominates over ‘first to patent’ when it comes to the ATK of Indigenous Peoples.
The Secretariat of the Convention on Biological Diversity (CBD) is leading an effort to reach 100 ratifications by the 13th Conference of the Parties (COP) in December 2016. Immediate opportunities await in ratification of the Nagoya Protocol. Ratification will drive IP reform, which is necessary to deal with the inherent human rights of Indigenous Peoples found in the United Nations Declaration on the Rights of Indigenous Peoples (DRIPS). On December 15, the Prime Minister responded to the release of the report of the Truth and Reconciliation Commission (TRC) with a pledge for full reconciliation. The first TRC principle of reconciliation is that the DRIPS “is the framework for reconciliation at all levels and across all sectors of Canadian society” while the eighth principle is that “supporting Aboriginal peoples’ cultural revitalization and integrating Indigenous knowledge systems, oral histories, laws, protocols, and connections to the land into the reconciliation process are essential.” After years of obstinacy, Canada dropped its permanent objector status in May 2016, and the dean of Lakehead University’s law school recently stated that fundamental change will result from the implementation of UNDRIP standards on free, prior and informed consent (FPIC) in Canada.
Canada is also Party to several Conventions developed by members of the United Nations Organization for Education, Science and Culture (UNESCO), including the World Heritage Convention and Cultural Diversity Convention (CDC). As a Party to the CDC, Canada recognizes “the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion.” Civil society has discussed joining the Intangible Cultural Heritage Convention, which would deepen Canada’s existing human rights commitments and show that Canada recognizes that “communities, in particular indigenous communities, groups and, in some cases, individuals, play an important role in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity.”
Given the rapidly changing political and legal landscape, it is likely that changes are afoot in Canada’s handling of genetic resources and associated traditional knowledge. Indigenous Peoples in Canada should keep a careful eye on political developments to ensure that progress is made during the Prime Minister Trudeau’s first term in office, given the Government’s other commitments in the next four years of their mandate.
This post was contributed by Fred Perron-Welch, Partner at BIONOMOS Law Professional Corporation in Ottawa, and Program Coordinator for Biodiversity and Biosafety Law at the Centre for International Sustainable Development Law (CISDL) at McGill University in Montreal.