Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode, and a 2L JD Candidate at Osgoode Hall Law School.
In 1996, the Comox First Nation in British Columbia brought a claim against an Indigenous artist from a different tribe over the use of the trademark “Queneesh”, which had been used to describe the defendant’s art business. Comox First Nation alleged that only the band had the right to use the term “Queneesh” because of its significant cultural meaning, being the name of both a Comox legend and its development corporation. The court ultimately decided against the band because “Aboriginal rights are outside the scope of trademark law.”
Cases like this raise questions about the scope of intellectual property (IP) law in Canada. In developing tests to determine the ambit and nature of Aboriginal rights and title (in R v Sparrow and R v Van der Peet), the Canadian judiciary has repeatedly emphasized taking into account “the distinctive societies and cultures of Aboriginal peoples.” So, at least some elements of Indigenous culture are inherently important enough to warrant constitutional protection. As William Fisher notes in The Puzzle of Traditional Knowledge, traditional cultural expressions (TCEs) are often “central to the identities of indigenous groups,” and unauthorized use of them “corrodes those identities,” especially when the knowledge or expression in question is religious or artistic in nature.
The challenge arises in attempting to balance the protection of cultural expressions, the free exchange of these experiences, and the accessibility of the formal IP system to all. High costs and complex processes that are often associated with the registration, renewal, or enforcement of IP protection often serve as barriers for Indigenous peoples seeking to use the formal IP system.
Many other issues stem from the fact that the formal IP system and traditional cultural systems are often based on competing worldviews. Formal IP laws in Canada tend to only recognize known individual creators or owners as holders of IP rights, which can be difficult to square with Indigenous outlooks of “ownership”. The UN Working Group on Indigenous Populations has noted that “indigenous peoples do not view their heritage in terms of property at all…but in terms of community and individual responsibility…For indigenous peoples, heritage is a bundle of relationships, rather than a bundle of economic rights.”
Trademark law in particular has the benefit of granting collective rights and can also provide perpetual protection. In order to receive protection under Canadian trademark law, however, TCEs must qualify as commercial goods or services, and some aspects of, for example, indigenous folklore, may not meet this definition.
A compound approach involving both Indigenous customary laws and contemporary intellectual property regimes should be implemented to protect indigenous TCEs in Canada. For instance, certain individuals or groups within an Indigenous community may be deemed as “custodians” of TCEs, authorized to determine who outside the community may use or reproduce them and in what manner. Contemporary IP systems may supplement more effective implementation or provide sustainable regimes where prior consent is given by the traditional owners of the TCE.
As explained by Professor Erica-Irene Daes, “there is usually an individual who can best be described as a custodian or caretaker of each song, story, name, medicine, sacred place and other aspect of a people’s heritage.” Michael Harkin gives the example of songs and dances associated with the Kawkiutl potlatch tradition, which are “under the exclusive possession and control of particular individuals.” With the existence of such individual “middle persons” in the relationship between Indigenous nations, their TCEs, and the remainder of the world, incompatibilities between contemporary IP regimes and Indigenous worldviews can potentially be reconciled through rigorous and effective consultation, as well as other means of seeking informed consent, on the part of non-members and non-authorized users.
On June 21, 2021, Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act, received Royal Assent. Two provisions within the Declaration are particularly salient to discussions on Indigenous rights and protections:
[Article 11] Indigenous peoples have…the right to maintain, protect and develop the past, present and future manifestations of their cultures…
[Article 31] 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…They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
Taken together, these articles call for the enhanced autonomy of Indigenous peoples to implement their own laws and traditions on matters concerning their people, as well as to “maintain, control, protect, and develop” that which belongs to them. They also serve to reaffirm a fundamental link between protection of Indigenous intellectual property rights and the revitalization of their cultural traditions and customs. Therefore, indigenous customary laws should be recognized as the best-suited mechanism for dealing with the sui generis nature of indigenous cultural property, and also the most just, as it would promote Indigenous autonomy and sovereignty over indigenous affairs.
 Erica-Irene Daes, “Intellectual Property and Indigenous Peoples” (2001) 95 Am Socy Intl Proc 143 at 183.
 Michael Harkin, Privacy, Ownership and the Repatriation of Cultural Properties: An Ethnographic Perspective from the Northwest Coast (2001) 5 at 306 (unpublished manuscript).