Expressions of Intent for International Polar Year 2007-2008 Activities

Expression of Interest Details

PROPOSAL INFORMATION

CANADA #184: Constitutional Framework for Protecting Traditional Ecological Knowledge in Northern Canada  (Protecting TEK)

Outline
Background Traditional Ecological Knowledge (TEK) will play a major role in developing resource management policy Northern Canada. The development of sound management practices has particular urgency given the current resource development boom and the impending risks posed by global climate change. In this context, it is essential that Northern communities retain control over access to and use of TEK. External use of TEK for resource development and associated environmental impact assessments, in appropriate circumstances, should result in remuneration and/or other benefits flowing to the source community. To our knowledge, the association between traditional knowledge and constitutionally recognized and protected Aboriginal Rights has been overlooked in the debate over whether traditional knowledge fits within the legislative framework that governs intellectual property rights in Canada. Objectives We propose to explore the issue of property rights in traditional knowledge as they attach to Aboriginal Rights recognized in s. 35(1) of the Constitution Act, 1982. This exploration has three parts: (1) Constitutional Issue - an examination of whether property rights in traditional knowledge can be recognized under section 35 of the Constitution Act, 1982; (2) The most appropriate form for those property rights in traditional knowledge to take and best practices for management of TEK; (3) A case study of the TEK in Northern Community: Déline. Constitutional Issue Our constitutional argument is based on the assumption that TEK attaches to and is an integral component of Aboriginal Rights. Indeed, the Supreme Court of Canada has recognized oral traditions and aboriginal people’s special relationship to their lands as forming the evidentiary basis for Aboriginal Rights and Aboriginal Title. In our view, a constitutional rights based approach may be the appropriate framing for the recognition of property rights in TEK. In the Dalgamuukw decision, the Supreme Court of Canada recognized a constitutionally protected sui generis communal property right in land under s. 35(1) of the Constitution Act, 1982. Traditional knowledge may be conceived of as an aspect of these protected rights. Our constitutional framing should anchor the claim for aboriginal control over TEK in Aboriginal communities. It is our belief that we may be able to develop a theoretical argument in support of this proposition. The theoretical arugment will have broad application for Aborginal communities across the Canadian North. The Case Study: Why Déline? Legal regimes for aboriginal TEK must start from an aboriginal understanding of TEK. For non-aboriginal legal academics, gaining insight into this perspective in a manner that is not exploitative of aboriginal communities can be difficult. We wish to collaborate with Déline on this project and provide an opportunity for the community to benefit from what we learn.

What significant advance(s) in relation to the IPY themes and targets can be anticipated from this project?
The issue of intellectual property rights over Traditional or Indigenous Knowledge is highly relevant to theme 6, Human Dimensions. It is widely accepted that this issue must be resolved prior to undertaking the bulk of the IPY Program.

What international collaboration is involved in this project?
International links will be developed with Northern communities, researchers, and other groups through the Centre for Intellectual Property Policy at McGill University. The issue of intellectual property rights has been recognized as significant by the Arctic Council.

FIELD ACTIVITY DETAILS

Geographical location(s) for the proposed field activities:
Northern Canada - with a case study conducted in Déline, Northwest Territories and potential for circumpolar collaboration

Approximate timeframe(s) for proposed field activities:
Arctic: 2007-2009            
Antarctic: n/a

Significant facilities will be required for this project:
The case study will necessitate a visit to the community and preliminary communication has indicated that such a visit is both desirable and welcome. Members of the Déline Self-Government Negotiating Team have suggested that they can also facilitate access to other communities and the Indigenous Knowledge policies of other organizations which may provide a basis for discussion and the generation of novel approaches.

Will the project leave a legacy of infrastructure?
This project will leave a legacy of virtual infrastructure in the form of a survey of alternative regimes for the regulation of traditional ecological knowledge. This will be of use Traditional Knowledge Centres. We will produce a report ranking the various options available to the community in managing its TEK.

How is it envisaged that the required logistic support will be secured?
Commercial operator
Own support
Other sources of support

Community support

Has the project been "endorsed" at a national or international level?
This pre-proposal has been reviewed and is being submitted by the Canadian Steering Committee (CSC). Ongoing discussions will integrate this pre-proposal into a larger network of related national and international initiatives. The CSC has initially sorted this pre-proposal into: Healthy and Sustainable Communities: Policy and Governance

PROJECT MANAGEMENT AND STRUCTURE

Is the project a short-term expansion (over the IPY 2007-2008 timeframe) of an existing plan, programme or initiative or is it a new autonomous proposal?
New

How will the project be organised and managed?
The project will be co-ordinated and managed by the two Principle Applicants.

What are the initial plans of the project for addressing the education, outreach and communication issues outlined in the Framework document?
We will work closely with Northern Communities to understand their needs and concerns and provide them with feedback on alternatives for securing benefits flowing from the use of TEK.

What are the initial plans of the project to address data management issues (as outlined in the Framework document?
We will maintain a database strategies used by indigenous communities to manage access to TEK and the database will be made readily available within the terms of the agreements with individual communities.

How is it proposed to fund the project?
We require funding for a graduate student to be located at the Faculty of Law at Queen’s University, a research assistant, a database manager, and travel costs. The approximate total is $100,000.

Is there additional information you wish to provide?
None

PROPOSER DETAILS

Prof Tania Bubela
2-32B Business building, University of Alberta, Edmonton, AB


T6G 2R6
Canada

Tel: 780.492.9335
Mobile: 780.233.5165
Fax: 780.492.3325
Email:

Other project members and their affiliation