Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School
On December 10, 2021, New Zealand launched the Indigenous Peoples Economic and Trade Cooperation Arrangement (“IPETCA”). This is an initiative under the Asia-Pacific Economic Cooperation (“APEC”) that aims to unlock the economic potential of Indigenous communities across the Asia-Pacific region. As the New Zealand government pointed out, the Asia-Pacific region contains about 70 percent of the world’s 475 million Indigenous population.
IPETCA strives to raise awareness to the value of Indigenous economies within APEC and increase trade and economic cooperation with Indigenous peoples. Canada was closely involved in the design of IPETCA through the Indigenous Working Group on Trade Policy, a branch under Global Affairs. Minister of International Trade, Export Promotion, Small Business and Economic Development Mary Ng announced Canada’s endorsement of IPETCA on the same day it was launched.
IPETCA looks to stimulate development across a wide range of sectors and areas—including responsible business conduct, entrepreneurial opportunities for small to medium sized businesses, digital trade and e-commerce, and many more. One particular objective set out by IPETCA was protecting and monetizing Indigenous traditional knowledge (“TK”).
Indigenous traditional knowledge refers to “knowledge systems, creations, innovations, and cultural expressions which have generally been transmitted from generation to generation,” pertaining to a particular people or territory. Examples include arts and culture, land management, food and medicine, and more. Indigenous traditional knowledge contains great economic potential. According to a report published by IP Australia in 2019, traditional knowledge has great economic potential if sufficient legislative protection is realized. In Canada, research by the Canadian Council for Aboriginal Business (“CCAB”) shows that traditional knowledge is widely used by Indigenous businesses. In fact, approximately one in five Indigenous businesses hold intellectual property. CCAB suggests that a better understanding of IP among Indigenous peoples may protect traditional knowledge and boost their economy.
So far, existing Canadian legislation that could be leveraged to protect Indigenous knowledge and cultural expressions include the Patent Act, the Copyright Act, the Trademarks Act, the Industrial Design Act, and the Plant Breeders’ Rights Act. The larger challenge lies in the different understandings of knowledge and innovative creation between Indigenous peoples and the Canadian legal system. Western conceptions of IP law are largely based on protecting the rights of individual creators. This cannot be easily adapted to protect collectively-owned TK and thus has created many gaps and barriers in effectively protecting Indigenous knowledge and cultural expressions.
To ameliorate the situation, Canada’s Minister of Innovation, Science and Economic Development, in spring 2018, announced the Intellectual Property Strategy. This included initiatives aiming at reforming Canada’s IP system to be more inclusive and reflective of the needs and interests of Indigenous peoples. The program also grants support for IP awareness-raising and capacity-building among Indigenous communities. APEC was aware of these structural challenges in finding a common ground for IP policy. The guideline for IPETCA highlights the importance of exploring and exchanging “mechanisms to promote Indigenous arts and traditional cultural expressions.” Hopefully, more fundamental reforms are soon to come to reconciliate the gaps and barriers in Canada’s IP system.