This article is part of a series about what the renegotiation of the North American Free Trade Agreement means for the knowledge economy in Canada and the people who turn ideas into innovations within one of the world’s largest free trade zones.
The renegotiation of the North American Free Trade Agreement (NAFTA) presents an important opportunity for negotiators to give a proper place to Indigenous knowledge within one of the world’s largest free trade zones.
Although credit is rarely given publicly, behind the scenes, the culture and know-how of the continent’s original inhabitants continue to find their way into products from handbags to pharmaceuticals.
This makes it important to recognize and incorporate protection standards for traditional knowledge (TK) in a renegotiated NAFTA, which entered into force in 1994, and established among the trading neighbours — Canada, Mexico and the United States — a market with a combined economic output of well over US$17trillion.
The prospect of modernizing the pact for the digital era has led to increased attention being paid to the invaluable role of innovation in our lives. However, the need to protect cultural innovators — including Indigenous peoples and their TK — is often overlooked.
Indeed, within the existing NAFTA, no reference exists to the protection of TK. Yet, from the range of Indigenous patterns that feature in contemporary fashion, to the significant leads that scientific researchers benefit from in the understanding of genetic resources contained in plants and animals, Indigenous peoples and their TK play a significant role in facilitating and promoting modern innovation. This knowledge is also critical for the conservation of rich biodiversity located within the trading zone. It would therefore be wrong to ignore the current opportunity to recognize and protect the intellectual assets of Indigenous peoples within any NAFTA renegotiation.
Admittedly, when NAFTA was first negotiated more than 20 years ago, there was limited understanding — and therefore limited discussion — of the contribution of Indigenous peoples to modern innovation. In fact, the only relevant major instrument from that time (1992) was the Convention on Biological Diversity (CBD), which was negotiated to support the conservation and sustainable use of biodiversity, as well as to ensure that benefits arising from its use were shared equitably. TK’s critical reference within this instrument was minimal, the most popular provision being article 8(j), which called on the parties to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities.”
Since the adoption of the CBD, however, discussions around the international protection of TK have evolved and emerged as subjects within several policy areas, including health, human rights, environment and even trade. For example, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, outlined foundational rights for Indigenous peoples in their relationship with states over their knowledge practices. Furthermore, the CBD has advanced its discussions on the international protection of TK through the 2010 adoption of the Nagoya Protocol — an instrument that establishes an international regime for access and benefit sharing governing the use of TK associated with genetic resources.
TK, in particular, has taken centre stage within the field of intellectual property (IP). The World Intellectual Property Organization (WIPO), for instance, commenced work on TK in 1998, with a series of fact-finding empirical studies on the IP needs of TK holders. This work resulted in the establishment in 2000 of a policy forum at WIPO dedicated to the discussion of issues that lie at the intersection of IP and the protection of TK and genetic resources. This forum, known as the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), is presently in advanced negotiations on the text of an international IP instrument that will ensure the effective protection of TK. Similarly, the World Trade Organization began consideration of TK issues at the turn of the millennium, pursuant to the 2001 Doha Ministerial Declaration, which instructed the organization’s IP council to examine the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights and the CBD, as well as the protection of TK and folklore. These developments have played a vital role in mainstreaming TK issues within multilateral, regional and bilateral negotiations.
The proliferation of regional trade agreements has witnessed an increasing incorporation of TK protection clauses within the IP and environmental provisions of several agreements as a means of recognizing and upholding domestic standards relating to the protection of TK. The most recent example, the Trans-Pacific Partnership (TPP), negotiated among the largest free trade zone in the world, was signed by 12 countries in 2016 (with the notable withdrawal of the United States in early 2017), and its Chapter 18 provides, inter alia, that “[t]he Parties recognise the relevance of intellectual property systems and traditional knowledge associated with genetic resources to each other, when that traditional knowledge is related to those intellectual property systems.” Furthermore, it incorporates provisions calling for cooperation among the parties around issues relating to the defensive protection of TK, including the use of databases, the training of patent examiners on TK-based searches, and enhancement of the overall understanding of issues relating to TK (see TPP article 18.16).
Drawing lessons from the TPP provisions, the progressive renegotiation of NAFTA’s IP chapter calls for a deep reflection on the incorporation of provisions that recognize and ensure effective protection over the intellectual contributions that Aboriginal communities make to the innovation economy in Canada, Mexico and the United States. There are two key reasons that underscore the importance for this.
First, Canada, like Mexico and the United States, is made up of a large Indigenous population and a deep cultural heritage, meaning that TK practices form a major part of its society and culture. Canada’s recent endorsement of UNDRIP, and significant complementary strides taken in rebuilding its historically damaged relationship with Indigenous communities, indicates a national policy direction toward inclusive governance models that incorporate Indigenous rights and concerns within Canada’s international dealings. Given the increased risks to the protection of sacred and important intellectual assets of Indigenous communities that arise with freer trade, greater cooperation on respect for TK within the renegotiated NAFTA text represents an important inclusion in the text. It would be insufficient, however, to merely import language from other agreements such as the TPP; rather, it would be critical that Indigenous communities across the trade zone be properly consulted and involved in the development of the relevant NAFTA provisions.
Second, the three countries are hugely biodiverse countries, meaning that they all play host to a significant array of genetic resources maintained by the TK of Indigenous communities. The TPP recognizes the important role that TK plays in maintaining biodiversity, and encourages parties to take measures that support this understanding in accordance with their international obligations (see TPP articles 20.13 and 29.8). The close relationship between TK and genetic resources is an extremely valuable resource for industries involved in natural product research, as it could provide leads to the value inherent in genetic material, based on Indigenous peoples’ uses and interactions with their environments. It has been estimated, for instance, that a hit rate of 80 percent or more can be achieved in developing medical drugs where the screening of plants is limited to species used by Indigenous communities.
The Nagoya Protocol — the recent supplementary agreement to the CBD — addresses the protection of TK associated with genetic resources by requiring that equitable benefit-sharing measures be put in place between users and providing communities (or states) where such TK is exploited. This is to be done on mutually agreed terms, with the prior and informed consent of the communities and/or government representatives. While Mexico has fully ratified the CBD and its Nagoya Protocol — meaning that these standards would apply to TK associated with genetic resources accessed within Mexico — significantly, Canada and the United States have not. Their differing international obligations justify the need for increased cooperation on the understanding of the implications of Nagoya Protocol standards to Canadian companies seeking to exploit TK within the free trade zone. Indeed, this will be critical to securing investments associated with culturally based innovation, as failure to comply with these domestic requirements could result in sanctions and, in some instances, revocation of the IP rights. This cooperation exercise could further help inform Canada’s internal reflections on implementation possibilities associated with ratifying the Nagoya Protocol.
While the United States has signalled its formal withdrawal from the TPP, key lessons learned from the TPP provisions — in particular, its recognition of the importance and role of Indigenous knowledge, and its various cooperation agreements among the parties for the protection of Indigenous knowledge — remain instructional for Canada as it approaches the renegotiation of NAFTA. This is not simply for the important purpose of upholding the rights of Indigenous communities, but also for further stimulating TK-based innovation. Admittedly, significant differences exist with respect to the international obligations and domestic policy preferences among the three trading partners, including their relationships with their Indigenous communities. However, it will be a positive move for Canada, in light of its current engagement with Indigenous peoples, to negotiate the incorporation of declarations, as well as guiding principles that promote cooperation on issues relating to the recognition, respect and protection of TK.