Preserving Our Cultural Property: A Workshop on Intellectual Property …

Preserving Our Cultural Property: A Workshop on Intellectual Property
                and the Preservation of Our Culture
                 First Nations University of Canada
                         Saskatoon Campus
                           710 Duke Street
                       Saskatoon, Saskatchewan
                         March 3 and 4, 2005

                 Summary of Workshop Proceedings
Prepared by:

Wayne M. Shinya,
Copyright Policy Branch,
Canadian Heritage
      Preserving Our Cultural Property: A Workshop on Intellectual Property and the
                               Preservation of Our Culture
                                   March 3 and 4, 2005
                           First Nations University of Canada
                                   Saskatoon Campus
                                     710 Duke Street
                                Saskatoon, Saskatchewan

                                 Summary of Workshop Proceedings

Background

In March 2005 officials from Canadian Heritage (PCH), the Canadian Conservation Institute,
and Industry Canada were invited to take part in a workshop entitled Preserving Our Cultural
Property: A Workshop on Intellectual Property and the Preservation of Our Culture. The
workshop was hosted by the Saskatchewan Indian Cultural Centre and took place on
March 3 and 4, 2005, on the Saskatoon Campus of the First Nations University of Canada
(FNUC).1

Officials from the Copyright Policy Branch of PCH and the Intellectual Property Policy
Directorate (IPPD) of Industry Canda participated in this workshop and other similar events with
two goals in mind: (1) to provide the workshop participants with an overview of the benefits and
limitations of Canada's national intellectual property (IP) regime; and (2) to obtain a better
understanding of the practical concerns of First Nations peoples regarding the protection of their
traditional knowledge.

The following is a summary of the workshop with a focus on those questions and issues that
touched on IP law and policy. The workshop moderator was Mr. Albert Scott of the Kinistin
Nakawe First Nation.

A pipe ceremony opened each session of the workshop.

March 3, 2004

Opening Remarks

Mr. Albert Scott thanked the Elders for their prayers. He also thanked everyone for taking time
to participate in the workshop. Mr. Scott stated that the reason for this workshop was to discuss
how to protect their culture and traditional way of life. He noted that some aspects of First
Nations culture were being used inappropriately such as ideas from First Nations culture being
commercialized without the consent of the relevant community.2


1
 http://www.firstnationsuniversity.ca
2
 Mr. Scott used the example of companies who he believes came up with the idea for making trampolines by
observing Aboriginal women as they prepared animal hides.
                                            -2-



Saskatchewan Indian Cultural Centre (SICC)3

Mr. Ralph Morin, President of the SICC, welcomed the workshop participants. He thanked the
Elders and leaders who had taken time from their busy schedules to share their knowledge and
experience with those taking part in the workshop. He expressed the hope that they may take
back knowledge from the workshop that would benefit their communities. He also thanked the
educators, students and relatives who had taken time to participate in the workshop, and
expressed the hope that they would share their knowledge during the workshop.

Mr. Morin noted that IP and cultural knowledge was being misused, exploited, sold and used in
every which way. Mr. Morin stated that First Nations people have a responsibility to share
information in order to better protect the knowledge of the Elders, and to pray to the Creator that
First Nations people learn the knowledge and that non-First Nations and individuals discontinue
using it. The role of the SICC is to provide a forum where First Nations people can discuss these
issues. According to Mr. Morin, it is difficult to learn the knowledge, to understand how to use it
properly, and to preserve the knowledge. He expressed the view that he had a personal
responsibility to learn the knowledge so that he could pass it on to his children and to future
generations. Mr. Morin concluded his remarks by thanking the workshop organizers and by
reviewing the workshop agenda.

Mr. Albert Scott noted that companies and institutions increasingly seek out the traditional
knowledge of First Nations communities in order to create new products for the global
marketplace. He suggested that consumers were demanding natural products, and the tourism
and cultural industries were becoming increasingly aware of the value of First Nations people in
terms of their traditional practices and ways of life. According to Mr. Scott, the variety, beauty,
and novelty of First Nations symbols, designs, and textiles are attracting commercial interests.
He also stated that First Nations people needed to protect their knowledge and their cultures in
order to pass it down to future generations and to contribute to the welfare of their communities.

Federation of Saskatchewan Indian Nations (FSIN)4

Vice Chief Delbert Wapass of the FSIN thanked the Elders for taking part in the workshop and
the pipe carrier, Mr. Ken Goodwill, for performing the pipe ceremony that morning. He also
thanked the Elder's helpers, the leaders and other participants who had taken the time to take part
in the workshop. Vice Chief Wapass stated that as an educator, who has taken part in
conferences, powwows and round dances across North America, he has listened to Elders and
others speak on what First Nations people must do to survive as First Nations people. He noted
that university institutions are researching Aboriginal medicines, for example. For Vice Chief
Wapass, the question that comes to mind is what is guiding the research process in order to
ensure that First Nations medicines were not being exploited, and to ensure that First Nations
people won't have to buy or obtain a government permit to gather their own medicines in the
future.


3
    http://www.sicc.sk.ca.
4
    http://www.fsin.com.
                                                    -3-


Vice Chief Wapass stated that he did not see himself as a keeper or owner of traditional
knowledge, but as someone who helps to preserve the knowledge in order to pass it on to future
generations. He stated that the duty to consult and accommodate the First Nations way of life
has been affirmed by the Supreme Court of Canada (SCC) decisions in Haida and Taku. He
further stated that First Nations people have the power to challenge governments and to say no if
governments refuse to consult with them according to their protocols. He noted that the
workshop was an opportunity for First Nations people to better understand IP and traditional
knowledge in order that Cultural Centres may one day be able to police, preserve, and protect the
Aboriginal way of life.5 He also noted that First Nations kids were not interested in learning
about their culture or who they were as First Nations people. Instead, they were more interested
in imitating African-American culture such as rap music and wearing their pants low, for
example, before they would stand up and describe themselves as being Anishnabe, Nakawe, etc.
He questioned the practice at some First Nations schools that require a student to take part in a
"sweat" (sweat lodge ceremony) before the student can pass his or her class. It was his
understanding that you do not force people to take part in ceremonies when they are still learning
about these ceremonies. However, he suggested that the authentication of First Nations culture
in their institutions and those institutions that their young people attended was important. Vice
Chief Wapass stated it was also important not to turn off First Nations youth from learning about
their culture, or to discourage governments or government officials, for example, from learning
about First Nations culture as the more they learn, the more they gain respect for First Nations
culture and support it. Vice Chief Wapass concluded his remarks by saying that in seeking to
protect their traditional knowledge, First Nations people were not seeking to make money.
Rather, First Nations people were trying to protect and preserve what they have, but were slowly
losing.

Dakota/Nakota/Lakota Intellectual and Cultural Property Traditions and Protocols

Mr. Ken Goodwill of the FNUC spoke on the Dakota/Nakota/Lakota perspective on the
relationship of man, creation and traditional knowledge. He began his presentation by
explaining that his people view themselves as part of creation and the universe. Creation was
described as being beautiful, powerful and sacred. All things, including people, animals, plants
and stones, for example, are related to each other. As such, we may call upon them for
assistance.6 Mr. Goodwill also noted that his people believe that if they perform the appropriate
sacrifices or rituals they can call on those who have gone before them to the spirit world for
guidance, help, and wisdom. In this context, he highlighted four ways that an individual may
acquire wisdom or ways of knowing: by learning their language; people telling them stories or




5
  Vice Chief Waspass gave an example of why it was important to authenticate what was being taught to third
parties. He noted that during a meeting with government officials an inappropriate protocol was performed. When
he asked what they were doing, the officials stated that they were performing a protocol that they had learned during
a training program. Vice Chief Wapass asked who was verifying that the teacher had the knowledge to teach
protocols.
6
  Mr. Goodwill illustrated the oneness of all things by explaining that his people use an expression after a prayer or
when they speak that means "all my relations" or "my relatives." The term not only captures people, but also other
manifestations of creation such as animals, birds, flowers, grass, trees, stones, etc.
                                                    -4-


showing them things; performing ceremonies that re-enact sacred moments in tribal history;
through dreams; and through vision quests.7

Mr. Goodwill noted that man, unlike the rest of creation, has the power of reason. Animals,
birds, trees, etc are doing what the Creator wants them to do. Only man, he said, with the power
of reason, can "screw up". We can scheme, rationalize and lie to ourselves. Sometimes we
believe in our own lies. It is therefore a difficult thing to be honest with oneself and with those
around us. But if you come to recognize that those around us can bring us happiness, then you
start to question your responsibility to other people. Mr. Goodwill states that this perspective
can be viewed as a survival technique used by his tribe and most other tribes, as the main
objective of the group was the survival of the tribe. As such, the individual had to be a
contributing member of the group. Mr. Goodwill went on to say that when we talk about sharing
and respecting the visions and opinions of other people we are talking about spirituality. If you
take all of Lakota/Dakota thought and divided it into disciplines as universities are inclined to do,
you will find that not one discipline could be described as totally secular. There is spirituality in
everything that we do and think. Mr. Goodwill concluded his presentation by stating that
traditional First Nations thought is valid in its own right. It is a product of a valid human
experience and does not need validation by western science, western thought, or by anyone else.
It has helped First Nations people to survive thus far and will surely help them survive in the
future.

Dene Intellectual and Cultural Property Traditions and Protocols

Before he started his formal presentation, Chief Allen Adams informed the workshop
participants that three young people living in the northern community of Montreal Lake had died
yesterday. He invited everyone to take a moment to pray for them.

Chief Adams noted that his Elders had predicted that some day people would go after what was
in their minds. In the Dene language there is an expression that refers to someone who has the
ability to take what's in your mind and use it for his or her own purposes. Today, knowledge
passed on from generation to generation and IP may also be taken by other means such as by
sharing it or by purchasing it. There is also concern that this knowledge may be sold by some
First Nations people for personal gain. He noted that there was a lot of pressure on First Nations
people to promote their culture, art, traditional ways, traditional medicines and medicinal
practices.8 He pointed to a newspaper article that described the benefits of rat root. The article
raised a number of questions. To what extent can First Nations people allow this knowledge to
be shared? To what extent are we losing control over this medicinal plant? Is what being shared
limited to how rat root can help you? Do we lose control if a pharmaceutical company takes this
knowledge four or five steps beyond this knowledge? What are our rights if new medicines or
chemicals are derived from the rat root? Chief Adams stated that it was pharmaceutical
companies, not First Nations healers who are making money from indigenous medicinal

7
  Vision quests are traditionally undertaken through fasting. Part of the quest is to help the person understand his or
her task in the universe. On the one hand, this may occur more than once. On the other hand, some people may
never have a vision.
8
  For example, see Tom Spears, Scientists Study Cree Medicines as a Way to Control Diabetes, The Star Phoenix,
October 27, 2003, p. A7.
                                                   -5-


knowledge. He asked how much indigenous knowledge has been used since the arrival of the
first Europeans? First Nations people were giving away their knowledge without fully
understanding what they were giving up.

Chief Adams proposed a number of steps to address concerns regarding the transmission, misuse
and misinterpretation of indigenous knowledge: a better consultative approach; a greater
understanding of how the information should be derived; and the identification of defensive
measures if someone seeks to gain information from a community. He also stated that where
indigenous knowledge is obtained from the original owner, his or her community should have a
copy of the original work along with information as to the owner of the knowledge.9 Chief
Adams further noted that in ongoing self-government negotiations IP is considered to be
exclusive federal jurisdiction.10 While acknowledging that there may be merit in maintaining a
uniform system of IP laws, he stated that his people would be pushing for IP law-making
authority in relation to the IP of his Elders and his people that was concurrent or even greater
than federal IP jurisdiction. Such law-making authority would need to consider the fact, for
example, that his people live not only in Saskatchewan, but also in other provinces such as
Manitoba and in Nunavut. Chief Adams noted that research of every kind would always take
place. He highlighted the need for a dialogue among organizations such as the Prince Albert
Grand Council to address the lack of a policy that is in place and operational at the community
level to protect indigenous knowledge from research, etc. Such a policy might address issues
such as identifying the holders of the knowledge such as elders, who was obtaining the
knowledge, identifying what the knowledge was being used for, the appropriate monitoring of
the knowledge as it was being used, and whether appropriate forms were signed to permit the
information sharing. The Mi'kmaw Ethics Watch was cited as a possible precedent.11

Chief Adams concluded his presentation by saying that the loss of indigenous knowledge is
going on right now and First Nations people will end up being a people without ownership of
their own knowledge. We have to watch out that this doesn't happen.

Cree Intellectual and Cultural Property Traditions and Protocols

Mr. Jake Sanderson of the FSIN opened his presentation by thanking the Creator for bringing
people together in order to take part in the workshop. He also thanked the Elder who performed
the pipe ceremony and the other Elders taking part in the workshop. He thanked the people who
had organized the pipe ceremony and provided tobacco to the workshop participants.

Mr. Sanderson stated that the Cree First Nation live in communities across Canada. He noted
that many First Nations are located in Saskatchewan. Despite different languages and protocols,
they shared many of the same values. Mr. Sanderson stated that today First Nations people live
in two worlds, the traditional and the modern. The Elders seek to use the Creator's laws to
preserve and pass on the riches of the land such as the mountains and rivers and the medicine

9
  Apart from the communities themselves, Chief Adams noted that a great deal of knowledge was also in the
possession of institutions such as the SICC, FNUC, and churches.
10
   Chief Adams made reference to four areas of federal IP law: patent law, copyright law, trade-mark law, and
industrial design law.
11
   http://www.mikmawey.uccb.ns.ca/prinpro.html.
                                                  -6-


wheels. Such laws also help people to learn how to live together. These laws cannot be written
down due to their sacredness. He expressed the view that First Nations people needed to return
to the original teachings of the Elders. Mr. Sanderson stated that while First Nations young
people may have become knowledgeable about technology, for example, they lived in a world of
crisis because traditional knowledge, in particular protocols, have not been passed on to them in
order to teach them how to live in an appropriate manner. According to Mr. Sanderson, this
failure to pass on the protocols and their sacredness was due in large measure to the fact that
First Nations people were not speaking their languages. He therefore expressed delight that First
Nations language teachers were taking part in the workshop. At the same time, he expressed
concern that the sacredness of ceremonies would be lost if they are conducted in English and not
in First Nations languages. Mr. Sanderson noted that First Nations people live in a world where
the dollar frames the worldview. First Nations people need to pass on to the next generation the
knowledge that has been preserved by the Elders. One person cannot do this. Rather, it would
need the collaboration of the entire community.

Nakawe Intellectual and Cultural Property Traditions and Protocols

Mr. Albert Scott, Kinistin Nakawe Nation, recalled the times when he would approach his
grandfathers and teachers to learn some songs. These songs were described as having a power
base, a spirit and a history. There is a proper way to use the songs. He did not acquire
ownership of the songs by learning to sing them. Mr. Scott was taught that when you go to the
spirit world you leave everything behind except your name. He described the Nakawe language
as beautiful, with several levels of meaning, including a level that is very pure, sacred and comes
from the heart. Mr. Scott said that based on the teachings of the Elders he would find it very
difficult to record the language as it is very much alive and has a meaning and spirit. When you
tape the language it is not the same. If you were to take a photograph of an Elder performing a
pipe ceremony or a rain dance, the Elder would confiscate the camera because of the belief that
during the act of giving food, for example, the Creator is believed to put something into the food.
But if you freeze that moment in a photograph, there is nothing there as the spirit has been
chased away. Mr. Scott said that we are not supposed to fool around with these things. To do
otherwise would put you, your family, the Elder and the community in jeopardy.

Mr. Scott stated that Nakawe protocols are not written down. By listening to the Elders and
taking part in ceremonies you can perhaps one day become an elder yourself and help your
community. Without proper protocols First Nations people will mislead each other, so it was
important that people learn the protocols of their community. Mr. Scott said that he did not want
to find a bear song, a rain dance song or other ceremonial songs on the Internet. He did not want
to anger any tribes or bands that may have recorded their culture in order to preserve it. First
Nations people did not do this prior to the coming of the Europeans. Mr. Scott stated that he
believed in using traditional ways in order to preserve First Nations culture. In Nakawe country
there are protocols that must be followed. There are no short cuts.12 If you take credit for
something and try and make money from it, you are placing yourself and your loved ones in
jeopardy if you don't pay for it. Mr. Scott expressed sorrow for what he was saying as he felt
that there was likely someone in the audience asking himself or herself how First Nations people

12
 For example, teachings relating to the tepee require you to talk about and acknowledge the concept of the tepee,
where it comes from, its power and history.
                                                 -7-


can preserve their language, culture and traditions. Is there a better way? Mr. Scott said yes. It
is by "listening and re-channelling and reinvesting in your youth, using your language and your
culture." Mr. Scott said that he tried to steer away from the use of the word "Elder" in his
community as he was taught to use other titles. He also noted that some of the things that he
talked about and the teachings were very powerful and could not be recorded. It was up to the
community, the culture and language to preserve it. Language was described as the "bottom
line" because the Creator gave every language group a language to speak with him. Mr. Scott
concluded his presentation by saying that his people were trying to do their best through the
schools and by trying to persuade his people to take part in ceremonies. He again said that some
things should not be used to make money. He called on members of the workshop to follow
their traditions and their protocols because this was what First Nations people were given to use
and to communicate.

Introduction to Intellectual Property Law and Policy

Mr. Wayne Shinya, Copyright Policy Branch, PCH, provided an overview of IP law and policy.
He highlighted several branches of IP.13 For the most part the policy objectives of these laws are
to support creativity and innovation, on the one hand, and to disseminate information, on the
other. IP law was not designed to provide blanket protection for all ideas and knowledge. In this
context, he stated that the expression "public domain" was a term of art that referred to subject
matter that is not protected by the IP system. He gave the example of "O Canada" and "God
Save the Queen" which, for commercial purposes, are considered to be in the public domain.
Mr. Shinya reviewed some initiatives that the Government of Canada has undertaken to better
understand the concerns of First Nations people regarding IP law and the protection of their
traditional knowledge. He noted that the "protection" of traditional knowledge might take many
forms depending on the objective of protection. Approaches to protection may range from
keeping knowledge secret, laws, policies and programs, and in some cases sharing knowledge
with those outside the originating community.

Copyright Law

Mr. Loris Mirella, Copyright Policy Branch, PCH, presented an overview of how copyright law
and policy function. The presentation focussed on the impetus behind Canada's copyright
regime as a mechanism for recognizing creativity, for exploiting those creative endeavours, and
for protecting those works from unauthorized exploitation by others.

Trade-mark Law

Ms. Lynn Fortin of IPPD, Industry Canada, provided an overview of the Canadian trade-marks
system. The presentation included some basic facts about trade-marks in Canada: their principal
functions as business and public policy tools, the benefits of registered trade-marks and the
existing limitations on what can be registered as a trade-mark, including prohibitions on the use
of scandalous marks. The characteristics and practical application of different types of marks


13
 An overview of the several branches of IP law may be found at the Canadian Intellectual Property Office (CIPO)
web site at http://www.cipo.ca.
                                                     -8-


were described (ordinary trade-marks, certification marks and official marks) and examples of
how they have been used by First Nations business and communities were highlighted.

Patent Law

Ms. Lynn Fortin, IPPD, Industry Canada, provided an overview of the Canadian patent system.
The presentation covered basic facts about patents in Canada including the dual public policy
objectives of: (1) granting time-limited, exclusive right to inventors to encourage further
investment and research; and (2) encouraging public disclosure to foster further innovation and
to spread the benefits of new knowledge and technologies to all Canadians. Some details
regarding the limitations on what can be patented and the procedures to obtain a patent were also
highlighted.

Canadian Conservation Institute (CCI) Services 14

Mr. Tom Stone of the CCI provided an overview of the services that the CCI could provide
Aboriginal organizations to preserve their material culture. Mr. Stone explained how the
intervention to treat an artefact that is under copyright might result in the infringement of the
artist's moral rights.15 The example of a totem pole was presented. The pole was carved only
40 years ago and so was still under copyright although the artist had since passed away. It was
originally painted and now the paint has worn badly. Someone in the community decides to
repaint it and did so using a different colour scheme and painted areas that had not previously
been painted. The artist's estate learned of this and took exception to the work that was done to
the totem pole as it "has prejudiced the artist's honour or reputation". The person or persons
who undertook the work can then be sued for damages.16 The moral of this story is that when
treating an artefact that is still under copyright it is very important to consult with the artist or his
or her estate about any plans to conserve or restore the piece.

Mr. Stone highlighted an international conference that the CCI will be hosting in Ottawa in the
fall of 2007. It will be called Symposium 2007, Preserving Aboriginal Heritage: Technical and
Traditional Issues in the Preservation of Aboriginal Material Culture. The objectives of the
Symposium are to: (1) share the current state-of-the-art conservation techniques and to share
traditional Aboriginal approaches to the preservation of material cultural heritage; and
(2) improve communications between professional conservation specialists and the First Nations
population in Canada so that exchange of knowledge is facilitated and First Nations artefacts are
conserved and accessible.




14
   http://www.cci-icc.gc.ca.
15
   Copyright arises automatically when an author creates a new "work" such as a book, painting, dance, song or
sculpture. Copyright subsists for the life of the author plus an additional 50 years. Moral rights arise only in the
case of copyright and subsist for the same length of time as the copyright in the work. Moral rights may be waived
in whole or in part but may not be assigned except, for example, on the death of the author when they may be
bequeathed.
16
   Subsection 28.2(3)(b) of the Copyright Act states in part that "steps taken in good faith to restore or preserve the
work shall not, by that act alone, constitute a distortion, mutilation or other modification of the work."
                                           -9-




March 4, 2005

Traditional Knowledge Discussions in Various International Forums

Mr. Greg Young-Ing, Chair, Indigenous Peoples Caucus of the Creators Rights' Alliance17
provided an overview of discussions and issues related to traditional knowledge that are taking
place in various international forums including: the International Labour Organization (ILO), the
Convention on Biological Diversity (CBD), the World Intellectual Property Organization
(WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (IGC), the World Trade Organization (WTO) Agreement on
the Trade-related Aspects of Intellectual Property Rights (TRIPs), the United Nations
Educational, Scientific, and Cultural Organization (UNESCO), and various other United Nations
forums. The presentation included a brief history of traditional knowledge issues in these forums
and outlined some of the key text related to traditional knowledge in various legislation,
guidelines and convents.

Ethical Concerns

Mr. Willie Emine of the FNUC provided some insights into his work on ethical considerations in
the dialogue between Canada's First Nations and the descendants of European settlers in Canada,
including the Federal Government. Mr. Ermine drew upon historical data to trace the
development and "collision" of two different worldviews in the Americas. He expressed the
view that the dialogue between these two worldviews to date has been unethical because it has
been based on the dominance of the European worldview. This has led to a loss of identity for
many First Nations. A new type of ethical engagement, where both parties contribute on equal
terms (a level playing field) is required to move forward in a positive way. In terms of IP this
related to First Nations regaining control over their knowledge systems. In more practical terms
it related to control over the legal mechanisms to deal with the appropriation and/or exploitation
of indigenous knowledge, and control of the funds needed to develop the tools and institutions
for its preservation and promotion.

National Gatherings on Indigenous Knowledge

Ms. Emma Doucet, Aboriginal Affairs Branch, PCH, provided an overview of the National
Gatherings on Indigenous Knowledge (NGIK) being hosted by the Department of Canadian
Heritage over the months of May and June 2005.18 The presentation provided a short history of
the National Gatherings on Indigenous Knowledge, and highlighted the goals and objectives for
the Gatherings. Ms. Doucet invited workshop participants to nominate participants for the
upcoming Gatherings.




17
     http://www.cra-adc.ca.
18
     http://www.traditions.gc.ca.
                                          - 10 -




Federation of Saskatchewan Indian Nations (FSIN) Position on the Duty to Consult

Ms. Tricia Watson of the FSIN provided an overview on the FSIN position on the duty to
consult. She highlighted two decisions by the Supreme Court of Canada (SCC) in November
2004 that examined the nature and scope of the Crown's obligation to consult and accommodate
Aboriginal peoples.19 The litigation in Haida Nation v. British Columbia (Minister of Forests)
involved a claim of Aboriginal title respecting the Queen Charlotte Islands of British Columbia
or Haida Gwaii and the waters surrounding it. In 1961 the province of British Columbia had
issued a tree farm licence. In 1999 the province approved the transfer of the licence to
Weyerhauser Co. The Haida challenged the transfer of the licence that was made over their
objection. The Haida did not have legal title to the land, but claimed that their ancestors had
inhabited the land since time immemorial and the cedar trees on the islands were integral to their
culture. The SCC found that the Crown has a legal, not just a moral duty, to consult Aboriginal
peoples and accommodate their interests. The duty arises when the Crown has knowledge, real
or constructive, of the potential existence of the Aboriginal right or title and contemplates
conduct that might adversely affect it. The duty is grounded in the principle of the honour of the
crown. Such a duty extends to the provincial Crown. Third parties such as Weyerhauser Co.
cannot be held liable for the failure on the part of the government to discharge the crown's duty
to consult and accommodate.20

Taku River Tlingt First Nation v. British Columbia (Project Assessment Director) involved the
re-opening of a mine.21 The First Nation took part in the environmental assessment of the
mining project. The First Nation objected to the building of a road over part of its traditional
territory. The province approved the project in 1998. The Court of Appeal upheld a lower court
ruling that the decision makers did not sufficiently address the concerns of the First Nation in a
substantive manner. The SCC overturned the lower court rulings. The SCC stated that the
process engaged fulfilled the requirements to consult and accommodate. The province was not
under a duty to reach an agreement with the First Nation and its failure to do so did not breach
obligations of good faith.

Ms. Watson went on to highlight some of the implications arising from these two SCC decisions
for Saskatchewan First Nations and for the Crown. She also provided an update on a case before
the SCC that involved the Mikisew Cree (Treaty 8) First Nation. In this case the First Nation
challenged a decision by the Minister of Canadian Heritage to allow the construction of a winter
road through the Wood Buffalo National Park on the grounds that the road infringed their
Treaty 8 rights and they were not consulted. The Court of Appeal said that the road was not an
infringement of a treaty right and therefore there was no legal obligation to consult the First
Nation regarding the construction of the road. Ms. Watson said that if the SCC were to allow the
lower decision to stand, it would greatly diminish the ability of First Nations to challenge



19
   http://www.scc-csc.gc.ca.
20
   [2004] 3 S.C.R. 511, 2004 SCC 73.
21
   [2004] 3 S.C.R. 550, 2004 SCC 74.
                                                 - 11 -


resource developers and regulatory approval processes.22 Ms. Watson concluded her
presentation by saying that First Nations people often get upset with the government for not
consulting with them. But we have to ask ourselves what are our expectations of the government
regarding the duty to consult? Accordingly, the FSIN, First Nations and Tribal Councils need to
put in place their own consultation standards, policies and guidelines. If First Nations people do
not establish their own consultation standards then the government and the courts will set them
for us. This will require resources and access to government information in order to properly
respond to consultation requirements. While the SCC cases discussed today relate to land and
resources where First Nations people do not have title, the FSIN believe that the duty to consult
relates to all areas that touch on First Nations treaty rights.

Federation of Saskatchewan Indian Nations Research Protocols: Principles and Guidelines
for Researchers Conducting Research For, With/And/Or Among First Nations Peoples in
Saskatchewan

Ms. Tricia Watson of the FSIN provided an overview on the FSIN research protocols. In 2004
the Education Secretariat of the FSIN created the FSIN Research Network to study and develop:
(1) principles and guidelines to govern research conducted for, with and/or among First Nations
people in Saskatchewan in order to protect First Nations languages, cultures, histories, arts,
knowledge systems past, present and future; and (2) to develop a provincial inter-institutional
research network protocol and guidelines to facilitate research conducted for, with, and/or among
Saskatchewan First Nations.

Ms. Watson noted that the research network is composed of: (1) an external network that consists
of each of FSIN's cultural and educational institutions, partnership programs (e.g. Indigenous
Health Research Institute), and other institutions (e.g. universities) interested in First Nations
research; and (2) the internal network that is exclusively FSIN and its institutions. She stated
that researchers have approached First Nations knowledge keepers to record and study First
Nations history and life in the past and this was not likely to change in the future. Some of this
research has resulted in the abuse, misappropriation, misinterpretation, or loss of control over the
knowledge provided by First Nations people to researchers because, for example, Elders give the
knowledge for a specific purpose, but once it is in print there is a danger that the knowledge
could be misappropriated. The goals of the research network is to protect First Nations inherent
and treaty rights to self-determination which includes the right to maintain, preserve, control
access to, and disseminate Saskatchewan First Nations knowledge resources. Ultimately, it is the
protection of indigenous knowledge that is the goal. The guidelines to be followed would
include: (1) any research, study or enquiry into individual and collective First Nations
knowledge, cultures, history, arts, languages, lands and/or spirituality conducted for, with or
among First Nations people would be reviewed and approved by the appropriate First Nations
Ethics Collective; and (2) all research, study or enquiry into First Nations knowledge, cultures,
history, arts, languages and lands involving any research partnership or contract would belong to
the community and would be returned to the community.



22
 The SCC released its decision in the fall of 2005. See Mikisew Cree First Nation v. Canada (Minister of Canadian
Heritage), 2005 SCC 69.
                                              - 12 -


Ms. Watson stated that following the guidelines would minimize the reoccurrence of misuse,
appropriation, misunderstanding and abuse by providing a mechanism that would require the
researcher to respect the cultural property rights of First Nations people in relation to knowledge,
ideas, cultural expressions, and cultural materials. It would also ensure the integrity of the
research process and its result and ensure that the knowledge shared with students, scholars, and
the community at large be respectfully, appropriately and protectively used through their
compliance to the FSIN principles and guidelines. The goal is to have the protocols in place
before the chiefs and assembly in June 2005 for their approval. This protection would form a
minimum level of protection with communities having the option to seek a higher level of
protection.

IP-related Questions and Issues

The following are some of the IP-related questions and issues raised during the workshop.

       ·   Reference was made to the Mi'kmaw Ethics Watch, an approach used by the Mi'kmaw
           people to protect their traditional knowledge when outsiders such as academics, for
           example, seek information about Mi'kmaw people or Mi'kmaw knowledge.23 Reference
           was also made to the United Nations Principles and Guides for the Protection of
           Indigenous Knowledge.

       ·   A workshop participant who was also a student at FNUC in Saskatoon noted that he only
           became aware of protocols regarding the sharing of IP and other knowledge when he
           attended FNUC. Accordingly, he believed that it was important to ensure that
           communities were aware of such protocols.

       ·   The presentation on trade-marks generated a great deal of discussion regarding the
           inappropriate and/or offensive use by those outsiders of symbols and words traditionally
           belonging to First Nations. Some Elders expressed the concern that using IP tools like
           trade-marks encourages individual ownership and economic exploitation of sacred or
           culturally significant symbols and terms. In their view, this clashed with the traditional
           values and customs of their communities and contributed to the erosion of their traditions.

       ·   A participant noted that some people in his community were upset when a First Nations
           entrepreneur created a new brand of cigarettes that used the image of a pipe as part of the
           packaging.

       ·   Following the conclusion of the workshop, a workshop participant mentioned to a PCH
           official that some First Nations people had expressed concern regarding a non-First
           Nations entrepreneur who had created a CD-Rom to teach the Cree language. The
           participant noted that the criticism might be misplaced, as the entrepreneur was not likely
           to make much money from the product given the small market for such a CD-Rom. The
           participant expressed support for the CD-Rom if it encouraged Cree youth to learn their
           language.

23
     Supra, footnote 11.
                                       - 13 -



·   A speaker stated that First Nations should have concurrent or even greater law-making
    authority than the federal government in the field of IP in order that First Nations people
    can protect their IP. As First Nations communities across Canada and the United States
    may share some aspects of their traditional knowledge, the speaker noted that protection
    should extend across Canada and internationally.

·   A participant noted that naming a car after Jesus would likely offend many people,
    including many First Nations people. Yet manufacturers are allowed to name their
    products after sacred symbols (e.g. Thunderbird) or the name of a great chief (e.g.
    Pontiac, Tecumseh). The participant also noted that Elders have expressed concerns over
    the use of sacred symbols such as sweet grass on commercial products.

·   A participant referred to a number of sports teams in Canada and the United States that
    incorporate Aboriginal references (e.g. Cleveland Indians, Edmonton Eskimos, Moose
    Jaw Warriors, Kansas City Chiefs, St. Boniface Mohawks, Washington Redskins, and
    Chicago Blackhawks). The participant asked whether the Trade-marks Act would
    consider a hypothetical name such as "Muskeg Lake White Men" as being scandalous?

·   A participant noted to a PCH official that these references are sometimes used to reflect a
    positive trait such as strength. This can sometimes help First Nations youth to see their
    culture portrayed in the dominant society in a positive manner.

·   A speaker noted that the acquisition and transfer of knowledge are sacred kinds of things.
    The holder of knowledge is viewed as having a responsibility to ensure that the recipient
    of the knowledge does not abuse that knowledge, otherwise there may be negative
    consequences for the holder of the knowledge and his family. That is why you cannot -
    deal, for example, with traditional medicine in the same way as medicine purchased in a
    drugstore. The speaker suggested that this difference is perhaps based on the different
    perceptions of First Nations and non-First Nations people as to what may be considered
    sacred. For some First Nations people the concern is that if you disclose information
    about First Nations medicines you are, in effect, misusing the medicines and they would
    cease to be effective.

·   A participant asked who defines what is authentic when an application is made for a
    certification mark. The same participant asked who defines what is an authentic First
    Nations art production.

·   A participant stated that his great grandfather was known as Big Bear. Today his band is
    known as the Big Bear Band. The participant noted that movies and stories have referred
    to his great grandfather without the author of the work having consulted with the
    community. Similarly, a search has also revealed that the name Big Bear has also been
    registered without the permission of the community.
                                                - 14 -


     ·   Questions were raised regarding the civil and criminal provisions of the Copyright Act,
         and a question was posed to a PCH official regarding the use of copyright protected
         material in a school setting.

     ·   There was a call to have future IP workshops in the language of the community.

     ·   A workshop participant mentioned to a PCH official that his community hired a
         consultant to help it develop an eco-tourism business. The consultant subsequently took
         some ideas he learned from the community to become an "expert" in the field.

First Nations Languages

     ·   A participant noted that the federal government spends something like $50 million to
         support the French language in Saskatchewan compared to some $1 million for First
         Nations languages.

     ·   A participant talked about the loss of First Nations languages and cultures as a result of
         Aboriginal children attending residential schools and being penalized for speaking their
         languages or practicing their culture.

     ·   A participant stated that First Nations people were seeking to preserve and protect the
         beliefs that were passed down to them by their ancestors. Schools have an important role
         in helping to preserve and protect First Nations languages and cultures. The participant
         expressed concern that First Nations and non-First Nations people who had learned a
         little about First Nations culture were misinterpreting the culture and the traditions in
         schools because knowledge keepers such as Elders, were considered either too expensive
         to employ as teachers or were not available. An example was given of a dance troupe
         that was formed at a school. While the idea per se was good, the dance troupe was
         described as trivializing everything that we stand for as First Nations people. First
         Nations youth were also getting mixed messages when, for example, they were taught to
         give tobacco first to the Elders while at the same time being taught in school that
         smoking cigarettes were bad for them. The participant suggested that such mixed
         messages could have negative consequences down the road.24 It was important for First
         Nations people to figure out how to hold on to what they have while sharing it with their
         children through a foreign education system.

     ·   Workshop participants inquired about the criteria used to select representatives for the
         National Gatherings Advisory Committee, and also on how locations for the Gatherings
         were determined.




24
  Another example of mixed messages highlighted by the participant was the practice in some Aboriginal
communities to perform pipe ceremonies during a church service.
                                                 - 15 -


Conservation

     ·   A participant asked about the availability of training in the field of conservation that
         combined the science of conservation with First Nations perspectives on the care and
         handling of collections.25

     ·   A participant noted that the Canadian Museums Association (CMA) annual meeting
         would take place in Saskatoon.26 During the conference there would be a workshop on
         the care and handling of traditional artefacts. The participant stated that you could count
         on one hand the number of First Nations people working in conservation in the museum
         field. The participant noted that there was a contradiction between conservation for
         museum purposes and the traditional Aboriginal view that these artefacts generally are
         intended to be returned to the earth as opposed to being kept forever in a museum. The
         participant acknowledged that the CCI was doing good work. However, it lacked
         knowledge in relation to First Nations artefacts. The participant proposed that the CCI
         could facilitate or hire First Nations people with expertise in the field so that the CCI
         could offer some traditional knowledge on artefacts.

Acknowledgement

Officials of Canadian Heritage, the Canadian Conservation Institute, and Industry Canada would
like to take this opportunity to thank the Saskatchewan Indian Cultural Centre for inviting them
to take part in their workshop. They would also wish to express their thanks to the speakers, in
particular the Elders, leaders, educators, and students who took the time to take part in the
workshop and shared their knowledge and contributed to the success of the workshop.




25
   There are two conservation programs in Canada. At Queen's University there is a Master of Art Conservation
Program, and at Fleming College in Peterborough there is a conservation management and technical training
program.
26
   http://www.museums.ca.