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History Table of Contents
1997 Summer Conference
Summer Conference 1997
Canada and the Asia-Pacific Promise: Hope, Hype and Reality
A Meeting of Cultures and a Clash of Values:
Living Together in an Interdependent World

Kathleen Makela,
Native Law Centre of Canada, University of Saskatchewan

I have been involved in international instruments for several years, but mostly dealing with the UN Declaration on the Rights of Indigenous Peoples.

It has only been in the last six months or so that I have become involved more extensively in the Asia Pacific issues.

In April, the Native Law Centre, with financial support from the Canadian Centre for Foreign Policy Development, hosted an Aboriginal policy roundtable on Indigenous heritage rights and the Asia Pacific Economic Co-operation (APEC). It was at this time that I jumped (or was thrown) into the intriguing world of Asia Pacific.

At the roundtable that weekend the discussions focused on the implications of APEC for Aboriginal peoples in Canada and other indigenous peoples within the APEC member countries.

Options were explored for Canada to co-operate with Aboriginal peoples in advancing their interests through the APEC process, including actions which could — and should — be taken by Indigenous people with the co-operation and assistance of the Government of Canada and steps that could be taken with alliances with NGOs and business organizations.

This morning I will discuss some of the ideas which came out of that roundtable within the context of "A Meeting of Cultures and Clash of Values"; that is, I will look at the impact of the growing contact between Indigenous and non-Indigenous peoples, both in the East Asia and in the West, through APEC.

Established in 1989, the specific objectives of APEC include encouraging the flow of goods, services, capital and technology, while reducing barriers to trade in goods and services in a manner consistent with GATT principles.

APEC has set as its goal the achievement of "free and open trade and investment" with all the major industrialized member economies by the year 2010, and amongst all 18 members by 2020.

If this goal is reached, half of all global trade will be controlled by APEC and the other half by the European Community (EEU).

APEC member countries' demographic and economic conditions vary greatly.

Some are highly industrialized and have Gross National Products (GNP) in excess of $20,000 U.S., while others are dependent on raw materials for more than half of their export trade and have GNPs below $1,000 U.S.

"Free and open trade and investment" means that barriers are removed to the mobility of capital and products, while limitations to the mobility of people are kept intact, facilitating the relocation of manufacturing activities to countries where wages are lowest, workers are better trained, and raw materials are cheapest.

For Canada, the consequences of APEC are similar to those of NAFTA. Canada will continue to enjoy a comparative advantage in raw materials and technology, providing that it maintains a high level of investment in higher education and research. Technology will become crucial for Canada to maintain its competitive position and high standard of living, while avoiding depletion of natural resources.; (a message Premier Ralph Klein hasn't picked up yet.

APEC member countries are home to an estimated 25 million Indigenous and tribal peoples, which is one-tenth the world's total Indigenous population.

Although very diverse culturally and linguistically, Indigenous peoples within APEC share a common past, which is colonization, and they are now facing a common future: overcoming racism based upon state theories of cultural superiority, which ultimately rejects the legitimacy of Indigenous peoples' own values and institutions.

It is in this area that I devote a lot of my time and energy, especially exploring Aboriginal concepts of justice. I could talk at great length about this, but....for the sake of brevity, I will share a quote with you from the final report of a 10-year global study of discrimination against Indigenous peoples by Martinex Cobo:

"Much of their land has been taken away and whatever land is left to them is subject to constant encroachment.

Their culture and their social and legal institutions and systems have been constantly under attack at all levels, through the media, the law and public education systems. "It is only natural, therefore, that there should be resistance to further loss of their land and rejection of the distortion or denial of their history and culture, and defensive offensive reaction to the continual linguistic and cultural aggressions and attacks on their very way of life, their social and cultural integrity and their very physical existence."

Although completed almost 15 years ago, the Cobo study rings true today and helps set the stage for my discussion this morning.

Regional economic integration could have both positive and negative effects upon Indigenous peoples. Greater capital mobility increases the rate of extraction of natural resources, especially if the country has large reserves of minerals, or extensive forests.

As a consequence of the shared past, it is not surprising that within many of the APEC member countries there are ongoing struggles between the government and Indigenous peoples over land and natural resources.

Many of the APEC member countries, such as Chile, Indonesia, Malaysia and Papua New Guinea, are economically dependent on the export of raw materials extracted from mines and forests.

As well, other countries, such as Canada, while not necessarily dependent on extractive sectors, are significant producers and consumers of minerals, wood products and energy, all of which is extracted at the expense of Indigenous peoples' traditional territories.

Increase in the rate of extraction of resources means an acceleration in the rate of dispossession of Indigenous peoples and the degradation of their subsistence base. This is especially a concern in countries where large regions are occupied by Indigenous majorities which lack full legal control over their territories; examples would be Canada, Australia, Chile, Malaysia, Indonesia, Thailand, and the Philippines.

For APEC to be beneficial to Indigenous peoples, it is essential for them to have greater participation in decision- making in the area of resource management and development. This includes effective national procedures for environmental impact assessment and accessible legal remedies for environmental injuries.

In the area of intellectual property rights, APEC will seek to harmonize national patent, copyright and trademark provisions. This in itself does not undermine Indigenous peoples' efforts to control their cultural heritage, artistic works, and sciences.

There is an underlying problem: existing intellectual property law and cultural property law discriminates against Indigenous knowledge. This is of great concern to Indigenous peoples when you consider that 80 per cent of the world's population depends on Indigenous knowledge for health security and half of the world's population relies on Indigenous knowledge and crops for food supplies.

In terms of trade, this translates into tens of billions of dollars a year.

There are three principle reasons for the unsuitability of existing intellectual and cultural property laws to protect Indigenous knowledge:

First is the requirement of proving that an artistic work or idea is original.

Second is the limitation of patents and copyrights to a term of years.

And, third is the failure to recognize customary rules for the teaching and sharing of knowledge by traditional owners.

The UN Working Group on Indigenous Populations has explored the idea of using intellectual property law to protect Indigenous cultural knowledge. It commissioned a study on cultural property of Indigenous peoples under the direction of Dr. Erica Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chair of the Working Group.

The study, which was released in 1993, reviewed international instruments for protecting rights in intellectual property, including the Berne Convention and the Paris Convention; as well it looked at legal regimes under national laws which protect cultural sites and the repatriation of cultural or sacred objects.

Dr. Daes found that the cultural property of Indigenous peoples, "is not merely a collection of objects, stories and ceremonies, but a complete knowledge system with its own languages, its own epistemology, philosophy, and scientific and logical validity."

She concluded that the current system of intellectual property rights, which is based upon the assumption that intellectual property is a transferable commodity, is, "not only inadequate for the protection of Indigenous peoples' heritage, but inherently unsuitable," because the basic philosophy behind these mechanisms conflict with the philosophy of most Indigenous peoples toward their cultural knowledge.

That is, Indigenous knowledge, artistic works, songs, traditional designs, medicines and oral traditions, as understood from the Indigenous world view, are not property but are integral parts of their identity and their heritage.

As one Aboriginal speaker explained:

"Much of what they want to commercialize is sacred to us. We see intellectual property as part of our culture, it cannot be separated into categories as (Western) lawyers would want."

Dr. Daes warned, as have other scholars in this area, that use of the concept of intellectual property can actually transform the knowledge into a commodity which can be bought and sold.

To avoid this commercialization, the creation of a new legal regime was called for which would offer protection to a broader concept of the collective "heritage" of indigenous peoples.

The heritage of Indigenous peoples is defined as: Everything that belongs to the distinct identity of a people and which is theirs to share, if they wish, with other peoples.?It includes all of those things which international law regards as the creative production of human thought and craftsmanship, such as songs, stories, scientific knowledge and artworks.

It also includes inheritances from the past and from nature, such as human remains, the natural features of the landscape, and naturally-occurring species of plants and animals [with] which a people have long been connected.

In this way, Indigenous knowledge is protected in a manner culturally appropriate; not as a property, but as individual and community responsibilities which can be shared but never alienated.

Nonetheless, until changes are made, the problems with protecting Indigenous knowledge and heritage will persist whether or not there is harmonization of regional intellectual property rights regimes.

However, APEC can promote or discourage its members' adoption of sui generis schemes for the protection of Indigenous heritage.

Indigenous peoples are not opposed to trade or business, although they insist upon the right to trade on fair and agreed terms.

For Indigenous peoples to fully participate and benefit in "free and open trade," it is essential for them to achieve stronger protection for their economic assets, which is necessary not only for their physical existence, but their spiritual, mental, and emotional well being.

These assets are their lands, ecosystems, cultural and artistic heritage and scientific knowledge. Indigenous peoples should be able to benefit from APEC, not be further colonized.

So, what is Canada's role in APEC and in the growing contact between East Asia and the West?

As a major investor and consumer in the APEC trade bloc, Canada has a responsibility to use its economic influence wisely in pursuit of justice and human security in Asia and the Pacific Rim.

Unfortunately, until now Canada has not demonstrated that it is willing to protect either the Indigenous knowledge or territories of the Aboriginal people, who are supposedly protected under its own Constitution by way of Section 35.

As Article 1 of the Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples states, the effective protection of the heritage of the Indigenous peoples of the world benefits all humanity. Cultural diversity is essential to the adaptability and creativity of the human species as a whole.

Canada must take a leading role to demonstrate to its APEC partners that it is to everyone's benefit to adopt measures which foster the full economic potential of the Aboriginal peoples within their own borders.

To quote special Rapporteur Cobo 15 years ago:

"Indigenous peoples have a right to continue to exist, to defend their lands, to keep and transmit their culture, their language, their social and legal institutions and systems and way of life, which have been illegally and unjustifiably attacked."