Introduction

The aim of this chapter is to explore how the Canadian domestic legal framework for Aboriginal rights could affect the implementation of ABS pursuant to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (NP). The question of implementation draws out a line of tension in this area that stretches back to the adoption of the Convention on Biological Diversity (CBD) in 1992. In Article 15.1, the CBD recognized the ‘sovereign rights of States over their natural resources’ and that this right gave them the ability to determine access to genetic resources.¹ The implications of this could easily be overlooked. It is common for modern international legal instruments to be based on a simple model of a unitary nation-state (i.e. a state with a singular and sovereign people) and in such a state Article 15.1 would not be contentious. The problem is that there are a number of states where this assumption does not apply due to internal legal and political conflicts with Indigenous peoples. In these states, the constitutional basis of the domestic legal framework is contested and so cannot serve as a secure legal foundation for an ABS regime.

In Canada and other states like it (i.e. Australia, New Zealand, the United States and others), this problem is a particularly complicated area of legal contention. This line of tension is reflected in the NP. In the preamble, it acknowledges the United Nations Declaration on the Rights of Indigenous peoples (UNDRIP) and maintains that ‘nothing in this Protocol shall be construed as diminishing or extinguishing the existing rights of indigenous and local communities.’ The influence of UNDRIP is also reflected in how the NP attempts to develop ‘international access standards’ in Article 6.3 (f)–(g), which states that parties are to

While this sounds promising for Indigenous peoples, it is qualified by the phrase ‘where applicable, and subject to domestic legislation.’ This chapter examines this line of tension within the Canadian context and highlights some of the possible areas of contention relating to the current framework for s. 35 of the Constitution Act, 1982, which states that ‘[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ With these points of contention in mind, I will then show how trends within the case law combined with recent changes to Canadian policy relating to Indigenous peoples at the Federal level offer the possibility of an alternative approach, which would adapt to the domestic legal framework to fit with the principles of self-determination and free, prior and informed consent in UNDRIP. This offers the possibility of establishing a stable domestic legal environment that is required for the implementation of any functional ABS regime.

The Supreme Court of Canada’s current approach to s. 35 is designed on the presumption of actions taken by the Crown and therefore it positions Indigenous peoples as fundamentally defensive. The only proactive use that has been explored for s. 35 is for an Indigenous litigant to seek a declaration. This can be a very effective strategy for shifting the grounds of policy negotiations with the Crown in some cases.² The problem for our present purposes is that the legal tests that would be applicable to concerns relating to the ownership of either traditional knowledge or biogenetic resources are problematic. Russel Barsh and James Youngblood Henderson aptly summarized the limitations of Aboriginal rights litigation almost twenty years ago, as they put it:

While this serves to illustrate the problems with the existing framework, we need to keep in mind that this process to a limited – but not insignificant – degree, cuts both ways. That is, were Canada to simply and unilaterally implement an ABS system that did not incorporate processes that require the prior and informed consent of Indigenous peoples then the inevitable litigation result would effectively render the ABS system inoperable.

The primary problem with the s. 35 approach is that it is predicated on the notion that the relationship between the Canadian government and Indigenous peoples is that of sovereign-to-subject. Under this view, prior to 1982, Canada had the right to unilaterally extinguish the rights of Indigenous peoples. This is predicated on the idea that Canada acquired sovereignty over Indigenous peoples via a combination of s. 91(24) of the British North America Act, 1867 (now the Constitution Act, 1867) and the treaties, which it unilaterally interprets as being a sui generis set of ceding and surrender documents (a curious status as it relies on the idea that Indigenous peoples lacked the degree of civilization required to be recognized as sovereign and yet possessed enough to cede and surrender any rights they did possess in perpetuity).⁴ This sovereign-to-subject model of Canadian sovereignty has been actively contested by Indigenous peoples for the last 150 years and its future is precarious at best. The case law has established that the basis of Aboriginal rights exists outside the Canadian legal system in the Indigenous occupation of land prior to the arrival of Europeans and that Crown sovereignty is ‘de facto’ in nature.⁵ This implies Canada is not currently in possession of de jure sovereignty over the whole of the territory that it claims and renders any ability to unilaterally extinguish Indigenous rights, at any point in time, legally dubious. An unsurprising fact is that the only possible foundation for Canada’s claims to sovereignty over Indigenous peoples is the pernicious and racist legal fiction known as the “doctrine of discovery.”

Recent policy changes in Canada seem to indicate that the government is taking steps to change the sovereign-to-subject framework by adopting the current international norms expressed in UNDRIP. This is a move that was recommended by the Truth and Reconciliation Commission in 2015 in both the Final Report and the Calls to Action.⁶ These recommendations have, at least potentially, begun to shape policy, as in 2016 the Federal Government endorsed UNDRIP without reservation and began moving towards implementation. As indicated by Hodges and Langford (Chapter 2) and Perron-Welch and Oguamanam (Chapter 6), it is also seen in the recently announced ‘Principles respecting the Government of Canada’s relationship with Indigenous peoples,’ which directly recognizes that ‘all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government’ and that Indigenous self-government is ‘part of Canada’s evolving system of cooperative federalism and distinct orders of government.’⁷ This affirmation supports a distinct move away from the sovereign-to-subject model of the relationship (and the doctrine of discovery that ultimately ground it) and towards a nation-to-nation model that draws on the history of treaty making between Indigenous nations and the Crown.

Given the problematic foundations of the existing framework for Aboriginal rights under s. 35, I have chosen to explore a different approach to the question of ABS implementation. Instead of simply assessing the fit between the NP and the existing constitutional framework, I will explore how UNDRIP offers a more flexible and, ultimately, more stable legal framework for implementing access and benefit-sharing (ABS) measures. This does not require full implementation of UNDRIP as a preliminary step. Rather, it requires that Canada align its domestic legal framework with the conclusions of the Royal Commission on Aboriginal Peoples (RCAP) regarding self-government. RCAP concluded that the inherent right of self-government is recognized and affirmed by s. 35 and further, that the emerging international principles provide additional support for ‘the right of self-determination and the cultural and political autonomy of Indigenous peoples.’⁸

I want to be clear, I am not suggesting that Indigenous peoples should rule out the existing s. 35 framework. Rather, I want to highlight the fact that this framework should not be taken as the domestic framework. That is, it should not be understood to be solid all the way through and so unalterable. It is, like any legal framework, contested and open to change. The approach I would recommend is to understand and grapple with the technical intricacies of the current framework but to do so strategically so that the framework can be adapted to reflect modern international legal norms relating to Indigenous peoples. In my view, the bottom line of this approach is that the implementation of any ABS system must be consistent with the nation-to-nation relationship between the Crown and Indigenous peoples in Canada. In this regard, an UNDRIP-inspired pathway offers us a very promising way to move forward.

This chapter is divided into the following three sections. First, I briefly summarize the limitations of the current s. 35 framework and show how it is grounded on a unilateral notion of Crown sovereignty in which the only claim to legitimacy is derived from the outmoded and racist fiction of discovery. Second, I will show how the Federal Government of Canada’s move to fully endorse UNDRIP and move towards its implementation opens up the opportunity to remove the doctrine of discovery from Canadian law and build a s. 35 framework on a true nation-to-nation basis. Finally, I will conclude the chapter by exploring how UNDRIP could be used to facilitate a proactive approach to self-determination, which includes control over traditional knowledge and biogenetic resources. This will establish what the necessary pre-conditions are for implementing an effective ABS regime in Canada.

The Limitations of the Existing Aboriginal Rights Framework

Here, I will highlight some of the key elements of the current s. 35 Aboriginal rights framework, as developed by the Supreme Court of Canada. My treatment of this framework will be more summative than exhaustive due to space limitations. An exhaustive approach would need to survey a body of law that the Canadian Courts have developed over more than thirty years. My aim is more modest in scope. I will simply point out some of the principal features of the existing doctrine by referring to a small set of leading cases (Sparrow, Van der Peet and Gladstone) and show how the framework that they develop is dependent upon a unilateral notion of sovereignty.

In Sparrow, the Court was tasked with establishing an interpretive framework for s. 35(1) of the Constitution Act, 1982. The language of the provision itself is broad to the point of vagueness and so, the constitutional drafters leave the courts the task of drawing meaning out of it. The Court set out to do just that. Their task was made even more challenging by the fact that s. 35(1) is not a part of the Charter (which extends from ss. 1 through to 34) and thus is not subject to the limitations of s. 1 nor the notwithstanding clause in s. 33.⁹ The Court recognizes this problem explicitly when it states that

The approach that the Court adopts here is fundamentally imbalanced. This reading of the words ‘recognition and affirmation’ in s. 35(1) is based on s. 91(24), but the Court does not go on to question the meaning of that provision. The text of s. 91(24) simply states that the exclusive legislative authority of the Parliament of Canada extends to all matters in relation to ‘Indians, and Lands reserved for the Indians.’ There is similarly no ‘explicit language’ in s. 91(24) that would grant the Crown undoubted sovereignty, legislative power and underlying title. Despite this fact since Lord Watson’s decision in St. Catherine’s Milling the courts have consistently read s. 91(24) as an unlimited grant of power over Indians and their lands.¹¹ In doing so, they have treated the meaning of the provision as being self-evident, but even from the limited positivistic terms of constitutional interpretation in the late nineteenth century, this is clearly an interpretation.¹² Nevertheless, the Court in Sparrow simply treats s. 91(24) as a kind of self-interpreting provision; as they put it ‘there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.’¹³ It is clear that the Court began their inquiry into the meaning of s. 35(1) with this conclusion firmly in place. This is why they refer to s. 91(24) as simply ‘federal power’, but what this interpretation misses entirely is any consideration of the legitimacy of this ‘power.’¹⁴ This interpretive decision is little more than begging the question (i.e. what is the nature of the relationship between Aboriginal peoples and the Crown?) and so there is little surprise that the framework that they have constructed upon it is circular.

If we extend our inquiry beyond the surface of s. 91(24) to its context, we see that the British North America Act, 1867 was unilaterally imposed on Indigenous peoples in Canada. While s. 91(24) does assign exclusive legislative authority in relation to ‘Indians, and Lands reserved for the Indians’ to the Parliament of Canada, it does not determine the nature of this relationship. The pre-dominant approach in Canada has been to regard the relationship as being one of the sovereign-to-subjects, but the question then is how did this relationship get established. The historical record does not support conquest and the claim to construct consent out of the treaties requires feats of hermeneutic juggling. It can only resonate with those who are already convinced that the Crown is sovereign. This means that the ultimate foundation of s. 91(24) – and the entire legislative and administrative regime that is based on it – is the doctrine of discovery.¹⁵

For the last 150 years, Canada has made extensive use of this particular constitutional provision. It has been used as the constitutional basis for the establishment of the Indian Act and its associated administrative body. The first version of this legislation collected together a set of preexisting acts (most notably the Gradual Civilization Act, 1857 and the Gradual Enfranchisement Act, 1869) and was passed in 1876. The Indian Act is the legislative expression of the sovereign-to-subjects relationship, but even in that regard, it is special. Indians cannot simply be thought of as either British subjects (which all Canadians were prior to 1948) or Canadian citizens as they were subject to a far more coercive system of governance. In my view, the best way to understand the Indian Act is to see it as a type of emergency legislation without a time limit. I specify that it is a ‘type’ because it bears the basic hallmarks of emergency legislation (i.e. a high degree of administrative discretion coupled with a suspension of the rights and freedoms that characterize the ‘normal’ constitutional order), but it is also dissimilar to emergency legislation. The object of the legislation is not an emergency. Its object is ‘Indians.’ As John Borrows states,

This control is not just history, but part of the present experience of Indigenous peoples in Canada.

This interpretation of s. 91(24) is the foundation of the framework of ‘reconciliation’ that the Canadian Courts have used since Sparrow for interpreting the meaning of the Aboriginal rights that were ‘recognized and affirmed’ in s. 35(1). Whether one elects to characterize the relationship between Canada and Aboriginal peoples via an analogy to the common law language of trusts, the vaguely religious overtones of reconciliation or the broader international language of treaties, the relationship must inevitably be qualified by the term ‘sui generis’ because, unlike all three of the preceding types of relationships it allows one party to unilaterally subject the other to its terms.¹⁷ The foundation of this relationship (which has been in place for over 150 years now) is the pernicious legal fiction of discovery, which provides the legal alchemy that enables the mere assertion of Crown sovereignty to diminish the rights of Indigenous peoples to be recognized as peoples. Thanks to this legal fiction Indigenous peoples suddenly become subjects of the Crown whose legislatures and courts then set to work to determine what rights continue to exist and the degree to which they can be infringed via a set of judicially constructed tests whose measures, are, at best, uncertain.

Van der Peet and Gladstone

The Van der Peet test tightens the test set out in Sparrow by holding that the Indigenous claimant must demonstrate that an activity was integral to their distinctive culture at the time of European contact in order to ground a contemporary right.¹⁸ This presents us with a rather immediate (and arbitrary) barrier to claims relating to TK or biogenetic resources as such claims would need to be grounded in pre-contact practices that are ‘integral to the distinctive culture’ of the claimant.¹⁹ This test makes Aboriginal rights litigation into a process that is overburdened with the prohibitively expensive and time-consuming pre-trail process of historical and anthropological fact gathering. Once the evidence is marshalled and the expert witnesses contracted, the outcome then hinges on a test whose precision is, at best, subjective. What standard or measure determines whether or not a given practice is ‘integral’ or merely an incidental practice ‘piggybacking on integral practices, customs and traditions?’²⁰

We have already covered how the framework in Van der Peet is overly restrictive on its specified timeframe and cultural analysis, but we should also note that it has a kind of invisible ceiling built into it. That is, it can accommodate rights that are ‘internally limited’ (e.g. ‘food, social and ceremonial purposes’ or the vague standard of ‘moderate livelihood’) but, it has thus far been unable to accommodate actual commercial rights. Some may point to Gladstone as a counter example to this given the fact that the Court recognized and affirmed the Heiltsuk Nation’s right to ‘to sell herring spawn on kelp commercially,’ but Lamer C.J. placed this right within the existing regulatory framework and considerably expanded the applicable standard of the justification for infringement to one that balances the interests of the Aboriginal group against the interests of the ‘broader community as a whole.’²¹ This ‘public interest’ standard for infringement was explicitly rejected by the Court in Sparrow as they held that such a standard would be ‘so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.’²² As McLachlin J. (as she was then) rightly put it in her dissent in Van der Peet the ‘public interest’ standard ‘is indeterminate and ultimately more political than legal.’²³ Despite these strong and principled objections, the ‘public interest’ standard in Gladstone remains firmly in place within the Canadian case law.²⁴ So, while commercial Aboriginal rights are theoretically possible within the current framework the Gladstone standard for justifying infringement will amount to a procedural barrier that will make such rights impossible.

The upshot for our purposes is the incisive observations of Barsh and Henderson made over twenty-years ago regarding the hurdles set in place by Sparrow, Van der Peet and Gladstone remain firmly in place. This does not mean that when it comes to the question of ABS implementation the existing domestic legal framework should be ignored. Rather, we should remember that in practice these hurdles tend to cut both ways. Canada may well unilaterally legislate an ABS system, but it conflicts with the rights and interests of Indigenous peoples, it will be subject to s. 35(1) litigation. This process is, as we have seen, weighted against Indigenous litigants, but it has real-world impacts on both the Crown and third parties as the cases are lengthy and their outcomes are uncertain. What this suggests is that there may well be a course of action that can reimagine the limits of the existing domestic framework for s. 35(1).

UNDRIP and the Nation-to-Nation Framework

The first step towards finding another way is to remove the doctrine of discovery from Canadian constitutional law. This means rejecting the approach taken by the Court in Sparrow and not simply assuming that s. 91(24) grants the Crown unilateral sovereignty over ‘Indians, and Lands reserved for the Indians.’ By rejecting this assumption, I do not mean to suggest that the courts should then set off on some quixotic historical inquiry to re-ground the unilateral concept of sovereignty.²⁵ Rather, as Stephen Tierney rightly maintains, they should recognize that their model of a unitary ‘nation-state’

The way out of this is to disaggregate the notions of ‘nation’ and ‘state’ so that we can begin to come to grips with the plurinational reality of the Canadian state.²⁷ This means that s. 91(24) must be interpreted in a manner that is consistent with the fact that Indigenous peoples are and have always been peoples. This, in turn, means that the only legitimate constitutional order possible in Canada is one that is securely based on the constitutional principle of quod omnes tangit ab omnibus comprobetur (‘what touches all should be agreed to by all’) and includes Indigenous peoples along with the English and the French settlers as founding nations in a plurinational union state.²⁸ In short, we need an interpretation of s. 91(24) that is consistent with the nation-to-nation relationship between Indigenous peoples and Canada. Larry Chartrand provides us with one possible version of such a reinterpretation of s. 91(24). In his view, the Court should restrict it to a ‘treaty power’ that allows Parliament to ‘negotiate with nations and peoples who occupy and possess territory that Canadian authority wishe[s] to acquire.’²⁹ Another broader way to characterize this type of interpretation – and sharpen the distinction between it and the current sovereign-to-subjects model – is to use the phrase ‘power-with’, which is the only way a nation-to-nation relationship makes sense.³⁰ This serves as an object of comparison that challenges the foundational claim of the current picture of federalism in Canada and moves towards the kind of democratic constitutionalism that could offer the possibility of a reconciliation based on dialogue and consent.³¹

Some may see this as good in theory but, maintain that it is impractical. Such a reader would likely point to the last 150 years of legislation and jurisprudence as proof that the presumption of the ‘nation-state’ is irrevocably embedded in Canada’s constitutional culture. While it is true that there is a strong and consistent line of legislation and case law that has attempted to maintain the notion that Canada is a unitary ‘nation-state’, this line has also been subject to constant contestation from both Québec and Indigenous peoples. Canada is, as Peter Russell rightly argues, best thought of as country based on incomplete conquests.³² The attempts to force the many nations composing it into a single mould has resulted in a crisis of legitimacy. This can be seen in both the Québec sovereignty movement and the struggles of Indigenous peoples to move out from the administrative despotism of the Indian Act and towards self-government. Both of these forces began to surface in Canadian national politics in the late 1960s and early 1970s. These are, in many ways, distinct sub-national group movements, but they also have a number of parallels, which extend far beyond this book. But even a cursory examination can show that the Royal Proclamation of 1763 sets out a system of political and legal relationships that directly affects both Indigenous peoples and Québec. The Canadiens actively protested the Proclamation and this quickly led to the passing of the Québec Act of 1774, which restored the use of the civil law and the free practice of Catholicism among other things. In many ways, the current crisis of legitimacy with its risk of Québec’s secession and struggles over Indigenous self-determination can be seen as part of a long wave of contestation against a unitary notion of a Canadian ‘nation-state’ dominated by the English settlers. This crisis does not need to result in the division of a single state into several smaller ones. Rather, legal pluralism offers them a way to address the troubling history of colonial imperialism and its ongoing legacy without simply declaring a legal vacuum. As Paul Schiff Berman helpfully puts it,

The norms that have been neglected here are the legal and political systems of Indigenous peoples as well as the various Western traditions of anti-imperialism. From this pluralistic perspective, it can hardly be surprising that the Sparrow framework has only resulted in moving in circles. Only one set of norms have been seen as law, but there is no available narrative to explain how this came to be the case because the narratives of discovery and savagery are spent.³⁴

This brings us to a consideration of Canada’s recent policy changes regarding UNDRIP and its relationship with Indigenous peoples as posited by other contributors to this book (e.g. Hodges & Langford, Chapter 2; Perron-Welch & Oguamanam, Chapter 6). In 2016, the federal government formally endorsed UNDRIP without reservation and indicated that they would implement it. This is a significant change in policy from the preceding government’s Statement of Support, which was issued in 2010, and stated that UNDRIP is a ‘non-legally binding document that does not reflect customary international law nor change Canadian laws.’³⁵ The actual substance of this change is still an open question. In her speech to the United Nations Permanent Forum on Indigenous Issues, the Minister of Indigenous and Northern Affairs stated that Canada intends ‘to adopt and implement the Declaration in accordance with the Canadian Constitution.’³⁶ The substance of this change hinges on what the government means by this. If it means that the existing jurisprudence on s. 35 will be used to strictly determine the meaning of UNDRIP then the result would be no real changes other than a nominal claim to implementation. On the other hand, the Minister continued, saying that by adopting and implementing UNDRIP ‘we are breathing life into section 35 and recognizing it as a full box of rights for Indigenous peoples.’³⁷ This could well signal that the implementation of UNDRIP will change the existing domestic legal framework.

There is a limit to what we can determine from this statement alone as no matter how finely we parse the words of the Minister we will not be able to get any further in determining the actual substance of implementation. We can situate it within a wider context to attempt to gain a little more insight. This naturally has its own challenges because as soon as we adopt a wider angle of focus we are confronted by a host of related facts and events all vying for our attention. I will confine my consideration of the context to a rough sketch of a couple of facts that I see as being key to the shaping the process of implementation.

First, there is the Final Report and the Calls to Action of the TRC, which was released in 2015 and explicitly calls for the federal government to adopt and implement UNDRIP as the framework for reconciliation. While these are the recommendations of a commission and not binding, their persuasive effect on policy-makers should not be underestimated. Second, the case law stemming from the sea-change in Calder – which recognized that Aboriginal rights arise from preexisting occupation and not the Crown – the courts have come to explicitly acknowledge that Crown sovereignty is uncertain with respect to ‘pre-existing Aboriginal sovereignty.’³⁸ This led them to qualify Crown sovereignty as being based on an assertion and so de facto in nature. It is clear that in their view the remedy to this lack of legitimate or de jure sovereignty is through the judicially mediated process of reconciliation. As the Court put it in Haida Nation, ‘[t]he purpose of s. 35(1) of the Constitution Act, 1982 is to facilitate the ultimate reconciliation of prior Aboriginal occupation with de facto Crown sovereignty.’³⁹ The problem here, as I noted above, is that the existing framework is predicated on an interpretation of s. 91(24) that begs the question of Crown sovereignty (by implicitly using the doctrine of discovery).⁴⁰ It is difficult to see how the Court can simultaneously qualify the legitimacy of Crown sovereignty and then set out to remedy this via an interpretive framework that is predicated on the undoubted assumption of Crown sovereignty. The circularity is clear. It seems the Court is at risk of transforming the constitution into the very ‘straightjacket’ they warned against in Reference re Secession of Québec.⁴¹ Simply put, the government is faced with the choice of continuing in the well-worn circles of the Court’s current approach or actually using the process of implementation to breathe new life into this area of the Canadian Constitution and move forward with a nation-to-nation relationship with Indigenous peoples. Whatever course of action the government decides to take will have direct implications for any possible ABS system.

Using UNDRIP as a Guide to ABS Implementation

In this section, I move from the preceding constitutional considerations to a more focused examination of how UNDRIP could be used to guide ABS implementation. This is a speculative exercise and so I want to be clear that what I am attempting to do here is not to determine the way to use UNDRIP in this area, but rather to simply provide a sketch that could be of some use to policy-makers who are thinking of how this might be possible within the domestic legal architecture of Canada. I realize that I am not alone here. As this volume came together, I was excited to note that Tim Hodges and Jock Langford (Chapter 2) have associated UNDRIP with potential implementation of ABS in Canada.

The main point that I would like to make is that the nation-to-nation relationship should be the foundational framework for any ABS system. It is clear that the existing interpretation of s. 91(24) is dependent upon the doctrine of discovery and can no longer serve as the load bearing constitutional proposition. The presumption of unilateral sovereignty in the existing domestic legal framework should be bracketed. This is precisely where the guiding norms of UNDRIP (specifically self-determination and free, prior and informed consent) can be put to use. As Sheryl Lightfoot argues, international Indigenous rights and politics offer a transformational set of norms that hold the potential for ‘a subtle revolution in global politics.’⁴² Within the Canadian domestic architecture, these norms serve as support for removing all of the nineteenth century colonial legal norms that still persist within our jurisprudence. This means that s. 91(24) becomes a ‘treaty power’ that allows the federal government to relate to Indigenous nations and that the treaties can no longer be read as a sui generis set of surrender agreements with limited constitutional protections, but rather they are constitutional documents that cannot be unilaterally infringed.⁴³ An immediate concern that is typically voiced in response to this constitutional configuration is that it would grant Indigenous peoples a ‘veto’, but this is a misleading argument that trades on the idea that requiring consent is a violation of the principle of equality. Roger Merino provides us with a clear and direct response to this argument

It does not offend the principle of equality to recognize this. Rather, it offends the principle of equality to simply presume that Indigenous peoples are a part of the people within a settler state without their free, prior and informed consent. As Tierney helpfully puts it, ‘[m]istaken assumptions about the unitary nature of “the people” can generate constitutional models which fail to accommodate the specific political needs of different peoples within the state’.⁴⁵ What this plurinational model of federalism offers us is a meaningful and substantial model of what the nation-to-nation relationship and of how UNDRIP can be used to ‘breathe new life’ into s. 35(1).

This shift to the nation-to-nation framework is of key importance when it comes to implementing an ABS system such as the NP. If the existing sovereign-to-subjects s. 35(1) framework is presumed to be the domestic legal framework, then, the new ABS system will suffer from all of the circular processes of litigation and political contestation that are all too familiar within the Canadian context. By shifting away from this framework and adopting the nation-to-nation model in line with the guiding norms of UNDRIP, it is possible to navigate the fraught legal waters between the sovereign rights of states and those of Indigenous nations.

This shift in framework results in a two-step approach to ABS implementation in Canada. First, we must recognize that respecting the norms of self-determination means that these processes are going to be driven in large part by Indigenous parties and that, as a result, the particular mechanisms through which shared governance and shared management regimes will be implemented will be case specific and depend to a large extent on the needs, capacities, and values of the parties to the agreements. Second, by recognizing that the domestic legal framework is incomplete, we can begin to look at a number of different areas of law and policy to learn by way of analogy and example. This allows policy-makers to turn their attention directly to the articles in UNDRIP and other relevant international Indigenous legal instruments as well as to other legal contexts (both indigenous and state-based) in order to establish an ABS system that respects the legal and political realities of Indigenous nations.

Introduction

As the world and its inhabitants continue to grapple with climate change and its effects, Arctic sea ice continues to melt at a fast rate.¹ Although the subjects of climate change and melting sea ice demand further scientific and legal attention in their own right, the focus of this chapter is, from a legal point of view, on some of the genetic resource rights challenges that melting sea ice exacerbates in the Canadian Territory of Nunavut – a jurisdiction rich in natural resources and the source of increasing scientific research interest.² That is to say, while the Nunavut Land Claims Agreement (NLCA or Agreement)³, a modern-day treaty executed by the Government of Canada and the Inuit of Nunavut, already provides for some land, wildlife, water, natural resources and Inuit Qaujimajatuqangit (Inuit traditional knowledge) management and protection through a complex web of inter-related administrative processes of its various Institutions of Public Government (IPG), and contemplates impact and benefit-sharing agreements for natural resource extraction under certain conditions, little in the NLCA or in Nunavut statutes is contemplated in the way of providing for extant (and emerging) genetic resource management, protection and benefit-sharing. Altogether, the access and benefit-sharing regime with respect to genetic resources in Nunavut is rather inchoate.

The Scientists Act, a statute of Nunavut, which unlike the NLCA, does not enjoy constitutional status, only requires scientific researchers to obtain an ‘access licence’ and does not legally mandate any consent requirements or form of benefit-sharing emanating from any research conducted. Other acts, both territorial and federal, provide similarly in terms of licence requirements, but most are silent with respect to consent requirements and benefit-sharing. In the context of melting sea ice, this legislative chasm is therefore a significant concern as extant and hitherto inaccessible and unknown genetic (as well as non-genetic) resources underneath the ice emerge for scientific exploration, research and exploitation.

On the one hand, the administrative processes of these IPGs may provide a paradigm by which to approach this chasm created by the NLCA, but any implementation of the paradigm would require amendment to the NLCA – a sufficiently thorny endeavour. On the other hand, Canada’s ratification of the Nagoya Protocol, a supplementary agreement to Convention on Biological Diversity (CBD),⁴ would also bridge this chasm created by the NLCA and, if necessary, provide a concrete legal basis for Nunavut to amend its statutes, such as the Scientists Act, or to enact new ones, to include consent and benefit-sharing provisions. Thus, while Nunavut has, through the NLCA, a Nagoya-like regime in place in respect of mandating and managing access and benefit-sharing with respect to non-genetic, or, simply, natural resources, there is still room for the Nagoya Protocol in Nunavut to address access and benefit-sharing with respect to genetic resources without displacing the existing regime that the NLCA has normalized. It is my position that Canada’s ratification of the Nagoya Protocol could fit neatly into and complement Nunavut’s constitutional order and is an auspicious step towards ensuring the territory’s sustainable development, management and protection of its genetic resources.

Part I of this chapter summarizes Nunavut’s legal history and framework. Part II more narrowly briefly explains Nunavut’s existing environmental impacts assessment regime and reveals some of its deficiencies in respect of genetic research. Part III reviews how impact benefit agreements with respect to natural resources currently come into being and illustrates why genetic resource (and scientific) research does not conform to these requirements. Part IV summarizes the statutory regime in Nunavut respecting scientific research and further illustrates how this regime leaves consent and access and benefit-sharing unaccounted for. Similarly, Part V reviews how Article 5 of the NLCA also leaves consent and access and benefit-sharing with respect to genetic resources unaccounted for. Finally, in Part VI, over 300 scientific research projects which have taken place in Nunavut over, approximately, the last 20 years are discussed, revealing that, for the most part, genetic resource research is occurring in Nunavut at a very modest level and that the time to ratify and implement the Nagoya Protocol is ripe, before this legislative chasm presents any serious legal problems to the territory.

Brief History of Nunavut

The territory of Nunavut, Canada’s newest jurisdiction, carved out of the hitherto then-eastern portion of the Northwest Territories, was created in 1999. The NLCA, executed by the Inuit of Nunavut and the Government, was concluded in 1993, and given legal force and effect in 1999.⁵ The Nunavut Act, another federal statute, legally created Nunavut and gave it existence as a territory within the Canadian federation of provinces and territories.⁶ The NLCA is considered a treaty within the meaning of the section 35 of the Constitution Act, 1982, and is therefore constitutionally protected as such. None of these statutes, however, provided to the Inuit of Nunavut a form of ethnic self-government; thus, Nunavut is governed by a public government. This public government operates as a consensus-based one. The vast majority of land in Nunavut is Crown-owned, with the Inuit of Nunavut owning approximately 19 per cent of surface lands and approximately 2 per cent of subsurface rights.⁷ Nunavut is inhabited by approximately 36,000 people or approximately one one-hundredth of the national population, across a territory which constitutes approximately 20 per cent of Canada’s total land mass.⁸

Nunavut Impact Assessment Regime

As mentioned earlier, the NLCA provides for the majority of land, wildlife, water, natural resources and Inuit Qaujimajatuqangit management and protection through the various administrative processes of its various Institutions of Public Government, otherwise known as ‘IPGs.’ The regime is essentially an environmental impacts assessment regime created by various Articles of the NLCA. It is designed mainly with the intention of protecting the environment and maximizing socio-economic opportunities for NLCA beneficiaries and Nunavummiut. Assessing the environmental and socio-economic impacts of proposed projects in Nunavut is its preoccupation. Adding to this regime is the federal Nunavut Planning and Project Assessment Act, otherwise known and referred to as ‘NUPPAA’, which came into force in July 2015.⁹ In the event of an inconsistency between the NLCA and NUPPAA, the NLCA prevails.¹⁰

In summary, the impacts assessment regime provides that any and all project proposals in Nunavut must first be sent to the Nunavut Planning Commission (NPC) for a conformity review. Conformity reviews conducted by the NPC determine whether the proposed project conforms to an existing regional land use plan of which there are two currently in Nunavut.¹¹ Proposed projects must conform to a land use plan. The NPC continues to work on a Nunavut-wide land use plan, but has not completed it yet. When it is complete, all proposed projects will be reviewed for conformity under that plan.

If the NPC determines that the proposed project conforms to an existing land use plan, it forwards the project proposal to the Nunavut Impact Review Board (NIRB) for an impact assessment review. If the NPC determines that the proposed project does not conform to an existing land use plan, it does not forward the project proposal to NIRB. Instead, the proponent may, in order to bring the proposed project into conformity with the land use plan, seek a land use plan amendment, a minor variance, or a Ministerial exemption.¹² Of course, the project proponent may abandon the project as well. If any of the first three options are chosen, and granted by the NPC or the appropriate Minister (whatever the case may be), the project then reaches NIRB for the impact assessment review that would have taken place had the project originally obtained a positive conformity determination from the NPC. The NIRB is then tasked with reviewing the proposed project, as it would in the previous case, and under an NLCA Article 12 Part 5 or 6 review, making recommendations to (most typically) the federal Minister of Indigenous and Northern Affairs Canada (INAC), as to whether the proposed project should or should not proceed. The Minister may accept or reject the NIRB recommendation, whatever the case may be. If rejected by the Minister, the Minister will then provide comments to the NIRB and then the NIRB will review its recommendation and resubmit it to the Minister after considering those comments.

The Minister is again free to accept or reject the subsequent recommendation by NIRB. This process takes place until the proposed project has been approved by the Minister, following which the NIRB then issues to the project proponent a project certificate (which may contain various terms and conditions), or until another event outside of this process terminates the project proposal. Additionally, in some cases, the NIRB may determine that a project does not require an impact assessment review under NLCA Article 12 Part 5 or 6 and simply recommends that the project proceed.¹³ The majority of projects inventoried in this study proceeded in the latter fashion.

Nevertheless, this regime is relevant to understanding how the Nagoya Protocol might fit within Nunavut’s constitutional order for the reason that every project, ostensibly including scientific research projects, must abide by these requirements explained above. Ostensibly because the NLCA does not define ‘project’ and instead only defines ‘project proposal’ – a definition that arguably excludes scientific and genetic research projects. Requirements that scientific researchers must adhere to are found elsewhere – mostly in the statutory regime – but either by convention or some undiscoverable law, scientific researchers still seek a project certificate from the NIRB, even though NIRB apparently lacks legal jurisdiction to review scientific project proposals. Article 12.2.2 provides that one of the primary functions of NIRB is to screen project proposals in order to determine whether or not a review is required; however, as we will see in Part II, most scientific research projects do not meet the criteria contained in the definition of ‘project proposal.’ Stated another way, it seems that NIRB is generally without jurisdiction to screen, let alone, review scientific research project proposals.

Before examining this issue more closely, it is prudent to note that NUUPPA requires the NIRB to ‘take into account any traditional knowledge or community knowledge provided to it’ in the course of preparing a recommendation to the Minister.¹⁴ NUPPAA defines traditional knowledge as the ‘accumulated body of knowledge, observations and understandings about the environment, and about the relationship of living beings with one another and with the environment, that is rooted in the traditional way of life of Inuit of the designated area.’¹⁵ Second, it is important to note that neither the NLCA nor NUPPAA empowers the NIRB with jurisdiction to establish requirements for socio-economic benefits when issuing project certificates and imposing terms and conditions.¹⁶ The latter point is particularly important because it illustrates that within the existing regime, the NIRB has no inherent jurisdiction to impose an access and benefit-sharing plan on a project proponent. The former point is important because unlike many statutes in Canada, NUPPAA provides a definition of the legally amorphous concept of traditional knowledge.

Article 26 of the NCLA: Inuit Impact Benefits Agreements

I have not argued in this chapter, or elsewhere, that the NLCA lacks entirely an access and benefit-sharing regime. Rather, it is my purpose in this chapter to illustrate that while the NLCA contemplates access and benefit-sharing with respect to natural resource extraction, little is contemplated by it in the way of providing for genetic resource management, protection and benefit-sharing. By reviewing Article 26, which provides what I refer to as a ‘quasi access and benefit-sharing’ regime, this assertion will become clearer.

Article 26 of the NLCA is titled ‘Inuit Impact and Benefit Agreements.’ Inuit Impact and Benefit Agreements are also known and referred to as ‘IIBAs.’ Article 26.2.1 provides that subject to two rare exceptions found in articles 26.11.1 to 26.11.3 ‘no Major Development Project may commence until an IIBA is finalized in accordance with this Article.’¹⁷ Article 26.3.1 provides that ‘[a]n IIBA may include any matter connected with the Major Development Project that could have a detrimental impact on Inuit or that could reasonably confer a benefit on Inuit, on a Nunavut Settlement Area-wide, regional or local basis.’¹⁸ Article 26.3.3 provides, among other things, that negotiation and arbitration of IIBAs shall be guided by principles that ensure benefits are consistent with and promote Inuit cultural goals, and are related to the nature, scale and cost of the project as well as its direct and indirect impacts on Inuit.¹⁹

Article 26 makes it clear, however, that IIBAs are executed only in relation to ‘Major Development Projects.’ ‘Major Development Project’ is defined as ‘any Crown corporation or private sector project that (a) is a water power generation or water exploitation project in the Nunavut Settlement Area, or (b) is a project involving development or exploitation, but not exploration, of resources wholly or partly under Inuit Owned Lands, and either entails, within the Nunavut Settlement Area during any five-year period, more than 200 person years of employment, or entails capital costs in excess of thirty-five million dollars ($35,000,000), in constant 1986 dollars, including, where Government is the proponent for a portion of a development project or directly-related infrastructure, the capital costs and employment projections for the government portion of the project.’²⁰ This definition must be unpacked to understand the genesis of the legislative chasm which exists in respect of genetic resource research.

First, it should be noted that a ‘Major Development Project’ will only be one where either a Crown corporation or a body from the private sector is the proponent. Second, the project must be a water power generation or a water exploitation project, or, a project involving the exploitation (extraction, not exploration) of resources wholly or partly under Inuit Owned Land (IOL). Inuit own title to 19 per cent of the land in Nunavut, including mineral rights to 2 per cent of Nunavut. Further, that exploitation project must either occur within the Nunavut Settlement Area during any five-year period and contain more than 200 person-years of employment, or entail capital costs in excess of thirty-five million dollars ($35,000,000). Major Development Projects and the IIBAs associated with them, therefore, tend then to be related to natural resource projects rather than scientific or genetic research or exploration projects. Moreover, Article 26 of the NLCA does not define ‘resources.’ Article 1 does, providing that ‘“resources means,” for the purpose of Articles 25 to 27, coal, petroleum, precious and base metals and other naturally occurring substances that can be mined, but does not include specified substances.’²¹ Based on this definition, it seems that the NLCA’s contemplation of ‘resources’ is limited to substances that can be mined, and would therefore ostensibly exclude some, if not most, genetic resources.

Compounding the problem in this respect is that neither Article 26, Article 11 (Land Use Planning), Article 12 (Development Impact), nor Article 1 (Definitions) provide a definition of ‘project’ as an independent concept or one different from ‘Major Development Project.’ Article 1 does, however, define ‘project proposal’ and provides that it ‘means a physical work that a proponent proposes to construct, operate, modify, decommission, abandon or otherwise carry out, or a physical activity that a proponent proposes to undertake or otherwise carry out, such work or activity being within the Nunavut Settlement Area.’²² It is difficult to conceive of a scientific or genetic resource research project that meets this definition, though one could arguably make the case that such a project might be a ‘physical activity,’ although this would be a tenuous argument given how federal statutes and regulations understand the term.²³ It seems then that genetic research projects do not comport with the NLCA’s understanding and definition of ‘projects proposals.’ NUPPAA defines ‘project’ similarly as ‘the carrying out, including the construction, operation, modification, decommissioning or abandonment, of a physical work or the undertaking or carrying out of a physical activity that involves the use of land, waters or other resources’, but it does not define ‘resources’, leading us back to where we initially started: almost no contemplation of or clarity as to how – and even if – strictly scientific projects are to be screened in Nunavut.

Ultimately, however, my interpretation of and conclusion with respect to Article 26 and the NLCA, generally, although I shall revisit the NLCA and discuss Article 5 momentarily, is that there is no provision in the NLCA which explicitly provides for access and benefit-sharing with respect to genetic resources in Nunavut, unless the (genetic research) ‘project’ is a ‘Major Development Project’ as defined in the NLCA. Our inquiry does not end here, however; we must proceed to an examination of the statutory regime to further understand the legislative chasm which leaves the protection of genetic resources unaccounted for in Nunavut.

Statutory Regime in Nunavut

As mentioned in the introduction to this chapter, the access and benefit-sharing regime with respect to genetic resources in Nunavut is rather inchoate. The Scientists Act²⁴ and Wildlife Act²⁵ further illustrate why this is the case. Further illustrating this reality is the limited powers and jurisdictions of the Nunavut Research Institute, a scientific research regulatory body amalgamated with the Nunavut Arctic College when Nunavut was created out of the Northwest Territories.²⁶

Article 5 of the NCLA: Wildlife

The last piece of the complex puzzle that forms the legislative chasm in Nunavut with respect to genetic resource research is Article 5 of the NLCA, which is devoted to wildlife. In reviewing Article 5, it is important to note that it addresses the Inuit of Nunavut and Canada’s legal relationship respecting wildlife in Nunavut, not a relationship enforceable by Inuit against the whole world. Article 5.8.7 of the NLCA provides that Designated Inuit Organizations (DIO) (a DIO is essentially NTI or one of the RIAs) ‘shall have the right of first refusal to market wildlife, wildlife parts and wildlife products in the Nunavut Settlement Area.’

Article 5.8.9 provides that DIOs ‘shall have the right of first refusal to carry out any venture aimed at the commercial collection or processing of non-edible wildlife parts and wildlife products … and … shall extend to non-edible wildlife parts and wildlife products available as a consequence of a kill or as recoverable in an inanimate form.’ Article 1 defines wildlife as ‘all terrestrial, aquatic, avian and amphibian flora and fauna ferae naturae, and all parts and products thereof’ and defines ‘flora’ as not including ‘trees suitable for commercial production of lumber or other building materials, but includes materials required by Inuit for local use, land-based activities and handicraft production.’ No distinction between commercial and non-commercial uses is made in Article 5.8.9, however. Unfortunately, neither Article 5 nor Article 1 defines ‘product.’ Moreover, the Nagoya Protocol excludes from its contemplated ambit of access and benefit-sharing commodities and so too, as a result, does the international legal community.³⁵ It therefore remains arguable whether ‘non-edible wildlife parts and wildlife products available as a consequence of a kill or as recoverable in an inanimate form’ constitute genetic resources.³⁶

Article 5.9.1 of the NLCA, which provides that any ‘legislation implementing an international or domestic interjurisdictional agreement shall be interpreted and administered to treat Inuit on at least as favourable a basis as any other aboriginal people in Canada,’ provides an interesting contrast to Articles 6(2) and 7 of the Nagoya Protocol. In short, in the absence of Canada’s ratification of the Nagoya Protocol, even a generous reading of these Article 5 provisions would likely leave genetic resources unaccounted for within the Nunavut regime. In totality, it seems very likely that Nunavut is without a regime – at least one grounded on any discernable laws – to govern access, use, and research regarding genetic resources.

NIRB Decisions Respecting Scientific Research in Nunavut

The absence of a regime to govern access, use, and research on genetic resources in Nunavut is not, however, a dire situation. The research conducted and data gathered for this chapter by reviewing and inventorying NIRB decisions revealed a somewhat startling historical portrait of scientific research since Nunavut’s creation in 1999 (and even as far back as 1997).

Findings

The 302 scientific research projects revealed to have taken place in Nunavut from 1997 to 2016 was assembled for the purposes of this study (see Figure 5.1). Nearly all projects were conducted by researchers from a broad section of Canadian, American, and international universities.

Figure 5.1 Scientific Research Projects in Nunavut

Using the ‘project type’ and ‘key focus’ variables, the next step in the parsing of this data was to identify trends that occurred within the data and to ultimately provide a coherent snapshot of scientific research which has occurred in Nunavut. In terms of classification outlook, 4 projects are concerned with traditional knowledge; 15 projects with potential for bio-prospecting; 14 projects with a focus on wildlife; 89 projects related to understanding climate change; 202 projects that required screening; 15 projects did not require screening; 33 projects were amended or renewed; 32 projects dealt with pollution and contaminants in the Arctic; 15 projects focused on Arctic vegetation and fungi; 36 projects concerned sampling rocks, minerals/ interest in geology; 14 projects concerned sampling sediment; 38 projects concerned with glaciers and ice; 28 projects dealt with collecting/sampling: algae, microbes, plankton, benthic organisms, insects and, finally, only 5 projects had a readily identifiable ‘genetic’ research component. 83 projects were missing documents.

Overall, these findings show that much scientific research is occurring in Nunavut amidst little, genetic resource research, with only 5 such projects – or 33 when the projects relating to collecting/sampling: algae, microbes, plankton, benthic organisms, insects are included. This number is likely to change, however, as global warming progresses and Arctic sea ice continues to melt.

Conclusion

Overall, this modest study conducted of scientific research projects occurring in Nunavut for the purposes of supplementing the argument for the ratification of the Nagoya Protocol in Canada revealed that there are few specific examples of genetic resource research projects in Nunavut, and that some projects would not be captured within the Nagoya Protocol’s scope. A proper legal regime respecting scientific and genetic resource research has not quite fully crystalized in Nunavut, vis-à-vis the NLCA or its statutory regime. As I have attempted to illustrate in this chapter, the extant regime is generally an inchoate patchwork. Interestingly, while the federal and other governments in Canada continue to undertake policy research respecting ratification of the Nagoya Protocol, it appears that the Government of Nunavut has not.

The Nagoya Protocol, if ratified/implemented by Canada, could and would complement existing regimes within Nunavut via the NLCA, as it would for all jurisdictions in Canada. But implementing the Protocol could be legally problematic given the complexity of the NLCA and existing regime, and the difficulty of enforcing compliance in existing natural resource projects. The Nagoya Protocol would perhaps be beneficial to the Inuit of Nunavut because it would promote the obtaining of free, prior and informed consent of Inuit in respect of genetic resource research in Nunavut and ensure benefit-sharing in respect of the way the existing regime promotes access to natural resources. But it remains questionable whether there are many genetic resource benefit-sharing opportunities in the immediate short-term, given the low quantum of such projects currently being undertaken in Nunavut. It seems inevitable that as climate change and Arctic melting progress, new genetic resources research opportunities will emerge and perhaps simply make ratification of the Nagoya Protocol necessary in the long-term (Oguamanam & Koziol, Chapter 7).

The objective of the Nagoya Protocol is to provide for ‘the fair and equitable sharing of the benefits arising from the utilization of genetic resources.’⁶⁵ It seems that Canada’s ratification of the Nagoya Protocol would at least set the basis for the ‘fair and equitable sharing of the benefits arising from the utilization of genetic resources’ in Nunavut without threatening or diluting the regime which Nunavut has already normalized in other areas. Also, Canada’s accession to the Protocol would provide Nunavut with a definitive legal regime to protect its extant and emerging genetic resources and associated traditional knowledge, which the NRIB continues to endorse through the recommendations provided for several project proposals to ‘hire local people and to consult with local residents regarding their activities in the region.’

Introduction

After 150 years of Confederation, 35 years since the repatriation of the Constitution, and 20 years after the Report of the Royal Commission on Aboriginal Peoples (RCAP), the relationship between Canada’s three orders of government – federal, provincial and territorial, and Indigenous – continues to evolve. This has largely occurred through the actions of the judiciary when called upon to adjudicate on the protection of existing Aboriginal and Treaty rights under Section 35 of the Constitution Act, 1982 (Nichols, Chapter 4). Yet, it has recently become one of the main issues in the political realm as well. In the 2015 Mandate Letter for the Minister of Indigenous and Northern Affairs Canada (INAC) (now divided into the Department of Crown-Indigenous Relations and Northern Affairs, and the Department of Indigenous Services) the Prime Minister called for ‘a renewed, nation-to-nation relationship with Indigenous peoples, based on recognition of rights, respect, co-operation, and partnership’ (Prime Minister’s Office, 2015). In 2016, the Minister announced to the United Nations (UN) that Canada is now an unqualified supporter of the UN Declaration on the Rights of Indigenous peoples (UNDRIP), affirming Canada’s commitment to adopt and implement UNDRIP in accordance with the Canadian Constitution. This was followed in 2017 by a second statement at the UN Permanent Forum on Indigenous Issues retracting reservations to the 2014 Outcome Document of the World Conference on Indigenous peoples on free, prior and informed consent (FPIC) (INAC, 2017). On 22 February 2017, the Prime Minister announced the creation of a Working Group of Ministers responsible for the review of relevant federal laws, policies and operational practices to ensure that the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards, including UNDRIP; and supporting the implementation of the Calls to Action of the Truth and Reconciliation Commission (TRC) (Prime Minister’s Office, 2017).

Yet, despite these statements and the celebratory atmosphere surrounding the 150th anniversary of Confederation, Indigenous leaders and intellectuals provide a different narrative of the past 150 years. Perry Bellegarde, the national chief of the Assembly of First Nations (AFN), reminded Canadians that treaties were based on the premise that ‘peaceful coexistence and mutual respect would and should guide our relationship forward.’ First Nations conceive of the treaty-making process as ‘a meeting of two equals, who both negotiate within their own legal systems and traditions. The treaty was not meant to extinguish First Nation rights, but to recognize that First Nations’ ways of life, including our legal systems and ways of governance, were protected’ (Bellegarde, Reference Bellegarde2017). Professor John Borrows recounts: ‘For us, the history of Canada is one of dispossession, disruption, and coercion. First Peoples have suffered greatly since Confederation, and it is worth asking whether the same will be true of the next 150 years. The [TRC] raises the promise of a new beginning, but what kind of beginning will that be? What would Canada look like if it truly respected Indigenous peoples?’ (Borrows, Reference Borrows2017). In Roberta Jamieson’s lecture at Ryerson University, ‘Canada’s Original Promise: Still Waiting to be Realized,’ broadcast on CBC Ideas on 30 June 2017, she asserted that ‘until Canada decides to be a country in which Indigenous peoples are able to thrive … in sustainable communities … the current challenges we’ve come to associate with Indigenous peoples will not only continue, they will grow, they will complicate, and they will become much more difficult and costly to address’ (Jamieson, Reference Jamieson2017).

In mid-2017, the Department of Justice (DOJ) released ten principles governing Canada’s relationship with Indigenous peoples. Principle 1 states that relations must be based on the recognition and implementation of the right to self-determination, including the inherent right of self-government. Principle 2 notes reconciliation is a fundamental purpose of s. 35 of the Constitution. Principle 3 indicates the honour of the Crown guides the conduct of the Crown in all of its dealings with Indigenous peoples. Principle 4 recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government. Principle 5 states that treaties, agreements and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect. Principle 6 elaborates that meaningful engagement with Indigenous peoples aims to secure FPIC when Canada proposes to take actions which impact them and their rights on their lands, territories and resources. Principle 7 asserts that respecting and implementing rights is essential, and any infringement of s. 35 rights must meet a high legal threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations. Principle 8 acknowledges that reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, which promotes a mutually supportive climate for economic partnership and resource development. Principle 9 recognizes that reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships. Principle 10 concludes by recognizing that a distinctions-based approach is needed to ensure that the unique rights, interests and circumstances of the First Nations, the Métis Nation and Inuit are acknowledged, affirmed, and implemented (Department of Justice, 2017).

The Minister of Justice wrote an editorial indicating that ‘the principles establish a clear, transparent foundation for reconciliation based on recognition – something Indigenous leadership have been asking successive governments to do for decades and has been recommended in numerous reports and studies. We took this step so that the future, unlike the past, can be written together. The principles bring a new direction and standard to how government officials must work and act in partnership with Indigenous peoples to respect Indigenous rights and to implement [UNDRIP]’ (Wilson-Raybould, Reference Wilson-Raybould2017). However, it has been observed that they unilaterally modify the language of the UNDRIP relating to FPIC, setting a lower standard by altering text from ‘in order to obtain their [FPIC]’ to ‘with the aim of securing their [FPIC]’ (Newman, 2017).

As the Government of Canada moves decisively beyond the status quo, it will be important to openly address imbalances pertaining to ownership of biodiversity, genetic resources (GR) and traditional knowledge (TK). Prior to colonization, North America was not terra nullius, it was an actively managed environment in which ecological conditions were shaped by Indigenous management of land and resources according to norms established through Indigenous legal traditions and worldviews that helped shape the complex ecosystems and biodiversity. The colonial imposition of foreign laws permitted the exploitation of the wealth of the land without regard to the inherent title and authority of these nations (Clogg et al., Reference 115Clogg, Askew, Kung and Smith2016; Tsilhqot’in Nation v British Columbia, 2014). To date, the Government’s response to the development and adoption of global norms on access and benefit-sharing (ABS) has built on this colonial mentality, alienating its Indigenous peoples and failing to account for the significance of their knowledge systems (Oguamanam, Reference Oguamanam2011; Dagne, Reference Dagne2017).

A new approach to ABS under the Convention on Biological Diversity (CBD) could help build confidence, as fair and equitable ABS requires structural changes in relations between the three different orders of government based on establishing a fair and honourable relationship between Indigenous and non-Indigenous peoples in Canada. For many Indigenous peoples, their relationship with biodiversity is a fundamental reality of their lived experience and is a site for the exploration of community knowledge and innovation systems and practical translations of the community’s worldview and cultural expressions (Oguamanam, Reference Oguamanam2011). Political and legal space has opened up for the recognition and exercise of Indigenous governance and environmental management rights (Clogg et al., Reference 115Clogg, Askew, Kung and Smith2016).

The Convention on Biological Diversity and Nagoya Protocol

The CBD opened for signature at the Earth Summit in Rio de Janeiro in June 1992 and entered into force in December 1993. It addresses environmental, social and economic aspects of biodiversity. Its objectives are the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of GR. Despite recognizing biodiversity as a common concern of humankind, the CBD situates these objectives in the context of the sovereign right of States to exploit their own resources pursuant to their own environmental policies, while being responsible for conserving their biodiversity and using their biological resources in a sustainable manner. This places much responsibility for biodiversity conservation in the hands of States, which have differing views on the ownership of biological resources and the role of the State in their regulation. The exercise of property rights is central to the reach and effectiveness of implementing measures, but the CBD does not dictate how States should exercise that control in relation to biodiversity, GR, or TK. It leaves considerable space for States to construct different approaches to implementation (Ferreira de Souza Dias and Garforth, Reference Ferreira de Souza Dias, Garforth, Morgera and Razzaque2017; Willmore, Reference Willmore, Morgera and Razzaque2017; Burelli, Chapter 13).

In Article 8(j), the CBD makes provision relating to the traditional knowledge, innovations and practices (TKIP) of Indigenous peoples and local communities relevant to in situ conservation. It requires Parties to, as far as possible and as appropriate, and subject to national legislation, ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities (ILC) embodying traditional lifestyles relevant for the conservation and sustainable use of [biodiversity] and promote their wider application with the approval and involvement of the holders of [TKIP] and encourage the equitable sharing of the benefits arising from the utilization of [TKIP].’ Article 10(c) further provides for sustainable use, requiring Parties to, as far as possible and appropriate, ‘protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.’ Article 15 lays the foundation for ABS by providing some direction for implementing fair and equitable access to GR and the sharing of benefits resulting from their use (Oguamanam, Reference Oguamanam2011; Greiber et al., Reference Greiber2012).

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (NP) entered into force in 2014. It has 111 ratifications as the date of writing, and it is becoming a global standard. It aims to facilitate the implementation of ABS by providing a strong basis for greater legal certainty and transparency in arrangements for access to GR, in exchange for benefit-sharing derived from their use. Unlike most environmental treaties, the NP has a number of provisions that are directly relevant to Indigenous peoples. The most important are found in Articles 5, 6, 7 and 12. Article 6(2) requires Parties to take measures, in accordance with domestic law, and as appropriate, with the aim of ensuring that the prior informed consent (PIC) or approval and involvement of ILCs is obtained for access to GR where they have the established right to grant access. Article 7 requires Parties to take measures in accordance with domestic law and as appropriate, with the aim of ensuring that TK associated with GR that is held by ILCs is accessed with their PIC or approval and involvement, and that mutually agreed terms (MAT) have been established. Article 5(2) obliges Parties to take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of GR that are held by ILCs, in accordance with domestic legislation regarding the established rights of these ILCs over these GR, are shared in a fair and equitable way, based on MAT. Article 5(5) requires Parties to take legislative, administrative or policy measures, as appropriate, so that the benefits arising from the utilization of TK associated with GR are shared in a fair and equitable way with ILCs based on MAT. Lastly, Article 12 directs Parties to take the customary laws, community protocols and procedures of ILC into consideration in the ABS process.

Clearly, there are significant implications for Indigenous peoples in the adoption of a domestic ABS regime in Canada. Given the expanded scope of the NP and the significant developments in Aboriginal rights jurisprudence over the past decade, existing policies and prior consultations on ABS have lost much of their relevance. Earlier discussions largely focused on the roles of the federal, provincial and territorial governments. Given the content of the NP, the importance of Aboriginal rights and role of Aboriginal self-government must be considered on the path forward to Canada’s ratification and implementation of the NP or the adoption of any other ABS regime. The ongoing consideration of ABS measures in Canada under the CBD, and possible ratification of the NP, affirm the pressing need to reconstitute and support Indigenous legal and organizational structures to effectively participate in ABS as a matter of capacity building and capacity development (Oguamanam & Hunka, Chapter 3).

The federal, provincial and territorial governments designed a Canadian Biodiversity Strategy and Outcomes Framework with goals and targets in 2016. The aspirational goals and targets recognize that CBD implementation will rely on meaningful, full and effective participation of Aboriginal peoples, and that the TKIP of Aboriginal communities are relevant for implementing the goals and targets, as is protecting and encouraging customary use of biological resources. In the context of Goal B on direct and indirect pressures on biodiversity/sustainable production and consumption, Target 12 is that ‘By 2020, customary use of Aboriginal peoples of biological resources is maintained, compatible with their conservation and sustainable use.’ In the context of Goal C on information about biodiversity and ecosystem services, Target 15 is that ‘By 2020, Aboriginal [TK] is promoted and, where made available by Aboriginal peoples, regularly, meaningfully and effectively informing biodiversity conservation and management decision-making’ (Environment and Climate Change Canada, 2016). Yet, no targets are set on ABS, protection of TK associated with GR, or the ratification of the NP. Similarly, the 2016 initiative of the federal government to review Canada’s environment assessment and regulatory processes¹ is silent on integration of ABS considerations into environmental impact assessments (EIA) (Oguamanam, Koziol, Lesperance & Morales, 2017).

Canada’s Constitutional Framework: Constitution Act, 1867 and Constitution Act, 1982

Under Section 91(24) of the Constitution Act, 1867 (formerly BNA), Parliament has exclusive authority to make laws in relation to “Indians, and lands reserved for the Indians” (Wilkins, Reference Wilkins2013). This authority comprises the power to deal with matters unique to and characteristic of Canada’s First Nations, non-status Indians, the Métis and the Inuit, as such (Wilkins, Reference Wilkins2013). The Indian Act was adopted under this head of power, but with Section 35(1) of the Constitution Act, 1982 as a guide, it is open to more democratic interpretations that do not justify domination (Borrows, 2016). In Campbell v. British Columbia, 2000 BCSC 1123, at para 81 Williamson J found that ‘[A]boriginal rights, and in particular a right to self-government akin to a legislative power to make laws, survived as one of the unwritten ‘underlying values’ of the Constitution outside of the powers distributed to Parliament and the legislatures in 1867. The federal-provincial division of powers in 1867 was aimed at a different issue and was a division internal to the Crown’ (Campbell v. BC, 2000). For the RCAP, cited with approval by Binnie J at paras 129–130 in his concurring opinion in Mitchell v. Minister of National Revenue, 2001 SCC 33, ‘[Aboriginal] governments are sovereign within their respective spheres and hold their powers by virtue of their constitutional status rather than by delegation. Nevertheless, many of their powers are shared in practice and may be exercised by more than one order of government’ (RCAP, 1996, 240–1; Mitchell v. MNR, 2001).

Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal rights and rights preserved or conferred in treaties between the Crown and Indigenous peoples or communities, including land claims agreements (Wilkins, Reference Wilkins2013; Daniels v. Canada, 2016). The word ‘existing’ indicates that these are only those that were not extinguished prior to the adoption of the Constitution Act, 1982. These rights do not depend on formal legal recognition by Canada for their existence (Nichols, Chapter 4). In the majority opinion in R v. Adams, [1996] 3 SCR 101, at para 33 Lamer C.J.C. noted that ‘Section 35(1) would fail to achieve its noble purpose … if it only protected those rights which were fortunate enough to have received the legal approval of British and French colonizers’ (R v. Adams, 1996). In R v. Van der Peet, [1996] 2 SCR 507, at para 31 Lamer CJ further indicated that s. 35 provides ‘the constitutional framework through which the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose … the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown’ (R v. Van der Peet, 1996). As Binnie J held at para 1 in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, the fundamental objective of the modern law of Aboriginal and treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions (Mikisew Cree Nation v. Canada, 2005). The phrase ‘existing Aboriginal rights’ must thus be interpreted flexibly so as to permit their evolution over time (Wilkins, Reference Wilkins2013).

Furthermore, the burden of proving that a treaty or Aboriginal right has been extinguished lies upon the Crown or on the party alleging extinguishment (Wilkins, Reference Wilkins2013), while rights claimants, where necessary, may seek the affirmation of the rights via a declaratory order (Nichols, Chapter 4). These rights do not only pertain to titled lands. In the concurring opinion of L’Heureux-Dubé J in R v. Adams, at paras 64–65 she notes that ‘[t]he doctrine of aboriginal rights … covers all aboriginal interests arising out of the native peoples’ historic occupation and use of ancestral lands. Aboriginal rights can be incidental to title but need not be: they are severable from and can exist independently of aboriginal title’ (R v. Adams, 1996). But, as Joshua Nichols (Chapter 4) observes, the pathway to realizing this interpretation has proven burdensome for Aboriginal peoples.

Royal Commission on Aboriginal Peoples (RCAP)

The RCAP found that, apart from s. 35, international legal norms impose positive obligations on governments to recognize and protect the rights of Aboriginal peoples with respect to lands and resources and self-governance. Under this approach, the right to self-government is not merely grounded in s. 35, but also in the emerging rights under international law of self-determination and of the cultural and political autonomy of Indigenous peoples. Parliament and the legislatures could take significant guidance from RCAP and see Indigenous peoples as nations that have a right to pursue objectives that may differ (Borrows, Reference Borrows2001). The RCAP recognized that the principle of sharing is central to the treaties signed between the Crown and Aboriginal peoples, and is central to establishing real equality among the peoples of Canada in the future. In Mitchell v. MNR, Binnie J confirms at para 129 that the RCAP recommendations regarding self-government and shared sovereignty are gaining acceptance with time. In a concurring judgment, he reflected on the nature of Aboriginal sovereignty, remarking that:

The Truth and Reconciliation Commission

In order to redress the legacy of residential schools and advance the process of Canadian reconciliation, the TRC issued 94 Calls to Action. Five are of particular relevance to the issue of ABS. First, in Recommendation 43, the TRC calls on upon federal, provincial, territorial, and municipal governments to fully adopt and implement the UNDRIP as the framework for reconciliation (Truth and Reconciliation Commission of Canada, 2015). The TRC then calls upon the Government of Canada to develop a national action plan, strategies, and other concrete measures to achieve the goals of the UNDRIP in Recommendation 44 (Ibid.). In Recommendation 45, the TRC calls for a renewal of the relationship between the Government of Canada and Aboriginal peoples, on behalf of all Canadians, by jointly developing a Royal Proclamation of Reconciliation, issued by the Crown, to build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764 and reaffirm the nation-to-nation relationship. The content would include, but not be limited to, four commitments: ‘(i) Repudiate concepts used to justify European sovereignty over indigenous lands and peoples such as the Doctrine of Discovery and terra nullius; (ii) Adopt and implement UNDRIP as the framework for reconciliation; (iii) Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future and (iv) Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements’ (Ibid.). Challenging the basis of the sovereignty of the Canadian State over Indigenous lands and resources, Recommendation 47 calls upon ‘federal, provincial, territorial, and municipal governments to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, such as the Doctrine of Discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts’ (Ibid.). Engaging the private sector directly, Recommendation 92 calls upon ‘the corporate sector in Canada to adopt the UNDRIP as a reconciliation framework and to apply its principles, norms, and standards to corporate policy and core operational activities involving Indigenous peoples and their lands and resources’ (Ibid.).

A Nation-to-Nation Roadmap for Indigenous peoples’ Interests in ABS

Some Indigenous participants in the ABS Canada-organized focus groups queried the basis for prioritization of ABS amidst significant socio-economic challenges that bedevil Indigenous peoples in Canada (Oguamanam, Chapter 1). Other participants were quick to counter that the need for ABS over GR and associated TK is an integral component of Indigenous peoples’ holistic and historic struggle for equity, fairness and justice. There is a consensus that the current momentum for ABS is opportune, to the extent that it opens a critical new opportunity for strategic policy making that would address the problematic federating order in Canada that pays lip service to Indigenous nations through a nation-to-nation relationship.

In the current constitutional order, the provinces and territories have the lion’s share of jurisdiction over natural resources, while the federal government has near exclusive jurisdiction over Aboriginal peoples. Historically, this federating order was rooted in colonial visions of Eurocentric capture, subjugation, and assimilation of Aboriginal peoples and their worldviews, as eloquently recalled in the TRC Report. Even though attempts by Aboriginal peoples to assert their ‘existing rights’ and ‘treaty rights’ have received significant judicial sanction, there is a glaring failure to translate those rights in a manner that enables the nation-to-nation relationship between Indigenous peoples and Canada in a fashion that fully recognizes Indigenous political and legal traditions as a component federating order of government in Canada. That form of recognition, and its operationalization, is key to further empowering of the Indigenous epistemic order, jurisprudence, worldviews and, ultimately, Indigenous peoples as stakeholders in the management of their natural resources, specifically, in this case, GR and associated TK.

The coalescence of various developments within Canada and internationally clears the pathway towards Indigenous peoples’ right to self-determination, which is a foundational basis for a nation-to-nation relationship. It also provides the impetus for Indigenous peoples to exercise other kinds of rights, including the right to GR and associated TK. Firstly; we have mentioned the progressive Canadian jurisprudence on s. 35 of the Charter and ensuing case law. The second development is the new architecture of international law on Indigenous peoples, Indigenous rights, including their rights to TK, pursuant to a number of international legal initiatives and regimes including the ILO Convention 169 of 1989 (a precursor to UNDRIP), the WIPO Development Agenda, the UNESCO cultural heritage regime, the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (IT), and the CBD and its NP (which are key drivers of ABS). These provide a strong basis for active participation of Indigenous peoples in decision-making, while recognizing Indigenous peoples’ rights to their natural resources and cultural heritage.

Third, and deserving of separate mention, is the UNDRIP – which has been buttressed by the American Declaration on the Rights of Indigenous peoples of the Organization of American States (OAS). Fourth is the TRC Report, which was instrumental to the fifth factor, namely, Canada’s endorsement of UNDRIP after a decade of opposition. Sixth is Canada’s acceptance of the necessity for FPIC. Seventh is the Canadian Biodiversity Strategy, its goals and targets. Eighth are the various recent and ongoing policy initiatives in Canada that have made reconciliation with Indigenous peoples official government policy, and the resultant programs of work and statements of principles and policies. In that regard, for example, we have mentioned the Federal government’s ten principles of engagement with Indigenous peoples and the Ministers’ Working Group that are putting into effect Canada’s commitment to Aboriginal treaty rights and other international obligations relating to Indigenous peoples. Ninth are the progressive developments in the research ethics landscape in Canada and internationally in which Indigenous peoples’ attention and active participation in research concerning them and their interest in data sovereignty is affirmed (Oguamanam, Chapter 11; Burelli, Chapter 13). Tenth, the UN Committee on the Elimination of Racial Discrimination is ramping up pressure on Canada to live up to its many commitments to Indigenous peoples and notably on the need for the adoption of a legislative framework to implement the International Convention on Elimination of Racial Discrimination (CERD) (CERD, 2017).

Appraising the real and potential impacts of the outlined initiatives at implementation levels from the perspective of enhancing Indigenous peoples’ nation-to-nation relationship with federal and provincial and territorial governments is necessary. Such an outlook requires departing from the colonial approach that considers Indigenous peoples as occupiers as opposed to owners of their lands and natural resources. As well, the new thinking should reflect a further and deliberate shift from the colonial mindset in which Indigenous worldviews and epistemic orientations are regarded as outside the fringes of ‘civilization’ (Oguamanam, Reference Oguamanam2008). These and similar colonial predispositions have been the foundation of cultural genocide via assimilation and other destructive tactics as symbolized in the legacy and tragedy of the Canadian residential school system. Rather, stronger autonomy for Indigenous peoples as an aspect of self-determination and self-government is required to propel the integration of their legal systems and traditions and worldviews in matters relating to their natural resources, including GR and associated TK.

ABS Beyond an Economic Focus

One of the important issues that a nation-to-nation framework for the participation of Indigenous peoples in the control and governance of GR would unravel is the economic focus of ABS in the NP, which is the extension of the market economic orientation of the CBD. As mentioned earlier, global norms on ABS reflect aspects of the colonial legacy of fixation on the economic value of raw materials, with the risk of alienating Indigenous peoples who are historically perceived as mere suppliers of natural resources with no credible sense of innovation or knowledge systems (Oguamanam, Reference Oguamanam2008, Reference Oguamanam2011). It bears recalling that ABS is essentially an economic incentivizing policy aimed at encouraging the use and protection of traditional knowledge innovation and pratices that are conservation friendly, and that there is neither a direct reference to TK nor to Indigenous peoples or to local communities in Article 1 of the Protocol which articulates its core objective.

Strong Indigenous participation on nation-to-nation basis would equally place on the same, if not an even higher pedestal, several culturally significant considerations touching on a wide range of factors in which Indigenous peoples’ relationship with the land, various natural resources, their knowledge systems, ecological worldviews, etc. constitute a universe of factors for self-determination beyond the economic purview of ABS. In a nation-to-nation relationship, Indigenous people are better able to elaborate alternative and complementary epistemic valourizations of their complex relationship with natural resources, including GR and TK, which was part of the target of colonial suppression. Therefore, as mentioned by Bannister (Chapter 12) and Burelli (Chapter 13) in this volume, the NP provides an option or framework, albeit a limited one, amidst other possibilities, for Indigenous peoples to pursue justice and equity, which constitutes the fulcrum of reconciliation.

Advancing Aboriginal Self-Determination through ABS

To its credit, the NP represents an important step forward for the concrete integration of IPLCs as practical stakeholders in the control and governance of GR in ways that open doors for further exploration or realization of Aboriginal rights to self-governance and self-determination. From Article 8(j) of the parent Convention, the CBD, down to the preamble of the NP² and its substantive provisions, including but not limited to Articles 5, 6, 7, 11, 12, 16 and 21, the Protocol makes references to ILCs and diverse categories of rights in relation to: GR and associated TK; FPIC; involvement in decision-making; etc. The NP also recognizes the transboundary nature of both GR and TK, a fact that indirectly recognizes natural or internal differentiation among nations of Indigenous peoples, as well as the arbitrary colonial balkanization of historically unified and cohesive Indigenous peoples across colonial boundaries.

Perhaps most significantly, in Article 12, the NP strongly mandates Parties³ to take into consideration customary laws, community protocols and procedures applicable to TK and associated GR when implementing related obligations. Furthermore, Protocol Parties are required to support the development of community protocols, involve ILCs, including women, and to support the development of model contractual templates on ABS. As mentioned by Oguamanam (Chapter 11) flexible use of contractual instruments such as proposed by the Geomatic and Cartographic Research Centre (GCRC) research group pursuant to the open licensing scheme for TK enables Indigenous peoples to specify and negotiate their expectations and other sensitivities with users of their GR and associated TK in ways that reflect Indigenous cultural values. The association or juxtaposition of Parties’ domestic laws with the customary laws, community protocols and procedures of ILC is instructive of the expected role of Aboriginal self-determination and self-government within an Aboriginal empowered and recognized order of government for equitable ABS and other issues that touch on Aboriginal justice in the Canadian federation. Aboriginal participants in the ABS Canada focus groups insist that that negotiation of Canadian federation has yet to crystallize as it remains a work in progress for as long as the 73 Aboriginal nations have yet to assume their rightful place in Canada on nation-to-nation basis as envisaged by their Aboriginal forbearers during the colonial encounter (ABS Canada Focus Group, 2015).

As we have demonstrated, so far, there is no dearth of vision or policy statements and proclaimed pathways in Canada for recognition of Aboriginal nation-to-nation relationship. A broad political space has been opened up, or so it appears, for Indigenous exercise of self-governance in environmental and kindred matters which are the sites for entrenching and understanding Indigenous peoples’ ways of life, the preservation of which is at the core of nation-to-nation relationship as symbolized in the treaties. The federal government through the Department of Justice is now unequivocal about the legitimacy of Indigenous peoples’ right to self-determination, their inherent right to self-government, and the importance of partnership in resource development. Recently these initiatives encompass renewed activism in extractive industries and other new frontiers of opportunities made possible by climate change (Dylan, Chapter 5; Oguamanam & Koziol, Chapter 7).

Collectively, these progressive dispositions are an exercise in self-interest and self-preservation on the part of Canada. As mentioned earlier in the chapter, pre-colonial North America’s environmental profile was enviable. It reflected historically sustainable ecological conditions and robust biodiversity thanks to millennia of Indigenous and ecological legal traditions and knowledge systems. Today, amidst global biodiversity loss and overall environmental crisis and climate change, the federal, provincial and territorial, and municipal governments have stated their resolve to promote and support TK and Aboriginal customary use of biological resources as part of Canada’s Biodiversity Strategy. An important cultural practice or principle that animates Aboriginal peoples’ relationship with the environment and nature’s abundant resources, which also underlies the treaties, is the principle of sharing. The RCAP is unmistakable on the centrality of the principle of sharing in treaty-making and in the future of organizing relationships in Canada. In essence, sharing and exchange of insights in various ways including natural resources, lands, knowledge, technology and worldviews are recognized as the basis for equity among the component peoples of Canada (Larry Chartrand et al., Chapter 8). ABS represents a very important context for giving that vision a practical effect.

Overcoming the Trust Deficit and Pushing the Self-Government Envelope

Most Indigenous peoples, including those who participated in the ABS Canada focus groups, have taken a welcome but suspicious notice of these progressive statements, especially on the part of the federal government. The deficit of trust in the troubled historical relationship continues to drive palpable but justifiable skepticism. The Final Report of the TRC captures the sentiments in this way:

Not many would disagree that the cumulative weight or potential of these reforms to retract, retrace, reverse and recompense for centuries of ‘cultural genocide,’ as the TRC calls it, that resulted from the acts and omissions of colonial Canada would be the measure of their success. Areas of redress, and anticipated impact, include the historical prohibition of cultural practices, especially native languages, protocols and rituals. Others are forced relocations that have resulted in loss of TK related to land, plants, foods and medicines, animals and the management of GR and other life forms. In that list, we must highlight the Indian Act system which ruptured First Nations socio-political relations and aimed to forcibly absorb individual nation members within broader Canadian society by narrowly defining and heavily regulating Indigenous peoples’ citizenship, land rights, succession rules, political organization, economic opportunities, fiscal management, educational patterns and attainment, and subjecting Indigenous peoples to provincial legislation and regulation without their consent (Borrows, 2016). First Nations were separated from their ancestral lands and controlled under a reserve regime that resulted in racial discrimination, a low quality of life, the loss of cultural heritage, the disruption of social associations and family ties, and a racialized educational system typified by residential schools. These policies have done immense damage to the sustainability and vibrancy of Indigenous worldviews, ways of life and robust curation of GR and associated TK.

Without necessarily depending on the government, many Indigenous peoples recognize that they must be proactively involved in the changes they seek (Jamieson, Reference Jamieson2017; Burelli, Chapter 13). For example, in what Professor Kirsten Anker described as ‘pushing the self-government envelope,’ in 2016 the Mohawk Band Council of Akwesasne, which lies within the borders of the two Canadian Provinces of Quebec and Ontario and New York State in the United States, launched the first Indigenous legal system in Canada outside of the Indian Act. With all the accoutrements of prosecution, advocacy and adjudication, but rooted in Mohawk values and principles, the new community-initiated court system is an admixture of Canadian judicial system and the Mohawk traditional scheme of justice designed to administer 32 laws on civil causes ranging from sanitation, property, tobacco regulations and elections, to the conservation of wildlife (Valiante, Reference Valiante2016). While other Indigenous peoples are inspired by the Akwesasne initiative, it is hoped that as the federal government reviews the program it will find it to be consistent with all the recent proclamations and policies on Indigenous peoples’ rights to self-determination and self-government within the framework of reconciliation and nation-to-nation relations. The TRC Report supports this with its call for a revitalization of Indigenous law and legal traditions as an element of reconciliation (Anker, Reference Anker2016).

In addition to the practical recognition of Aboriginal legal thoughts and legal systems into Canadian jurisprudence, another aspect of the anticipated cumulative effect of the progressive policies and proclamations on Aboriginal relations is reflected in Aboriginal unity of purpose in insisting that, in view of the residential school legacy, culturally sensitive and restorative education is important for both Indigenous peoples and other Canadians. In multiple ordinary and not so ordinary encounters, the degree of ignorance of other Canadians regarding Aboriginal history and experience with colonial Canada is simply astonishing. With such a great degree of national ignorance, the TRC’s observation that ‘New policies can easily be based on a lack of understanding of Aboriginal people, similar to that which motivated the [residential] schools’ is instructive (TRC Report, 2015 at 137).

In sum, political and legal empowerment of Indigenous self-determination through self-government in furtherance of a nation-to-nation relationship within the Canadian federation is necessary for Indigenous peoples to effectively participate in initiating and implementing this litany of changes and realizing the enumerated expectations. Beyond recent policy statements and proclamations, all tiers of government need to push for more legal and political action in the direction of self-determination. We recall yet again Jamieson’s remark that Aboriginal peoples should take charge and act and not wait for the government to fail in its promises again and then complain in a historically cyclic fashion. In that vision, ABS – like all other things concerning the interests of Indigenous peoples – would be fully expressed and integrated into the holistic framework of Indigenous peoples’ historic struggle for fairness, equity and justice.

Provincial Governments: Crucial but Unfelt Partners

Perhaps the most troubling dimension of the expected nation-to-nation Aboriginal engagement is the not-so-proactive involvement of provincial and territorial governments in comparison to federal government’s visibility on the Aboriginal and, by vicarious and potential extension, the ABS file. While the federal government’s initiative has an inspirational significance on all other tiers of government, it is important to note that the bulk of its jurisdictional leverage on Aboriginal matters is political and is radically constrained by the Indian Act. In relation to control and ownership of natural resources, the provinces and territories wield stronger jurisdictional influence due to s. 92A of the Constitution Act, 1867 and thus constitute the strongest site for heavy lifting on an Aboriginal-sensitive ABS policy.

Until the provinces come on board, the evolution of ABS policy across Canada’s three orders of government in a way that concretely recognizes Indigenous peoples as actors on a nation-to-nation basis will remain a mirage. Moreover, as a dualist state, the federal government will require unequivocal buy-in by provincial and territorial governments to breathe life to the UNDRIP and other relevant international instruments, including the NP, that promote integral elements or aspects of Indigenous self-determination to varying degrees. Since some of these agreements involve GR and, of course, other natural resources, provincial and territorial governments have significant stakes which are not highlighted in recent policy statements and proclamations.

On an adjacent note, even the federal government’s leadership in opening up the legal and policy space for Indigenous self-determination does not seem to go far enough into critical areas of its jurisdictional leverage. For example, it has yet to identify the gaps or gulf between Canada’s colonial intellectual property (IP) regime, which is largely under federal jurisdiction pursuant to s. 91 of the Constitution (de Beer, Reference De Beer and Brusnyk2011; Paterson, Reference Paterson2017), and Indigenous TK. As in many colonial states, under Canada’s IP laws, there is little or no recognition for TK. The latter, as we have seen, is a serious aspect of the NP and many international instruments crucial to ABS and Indigenous self-determination, not least of which is the UNDRIP. ABS presents a clear opportunity to respond to the clarion calls for recalibration of the philosophy and architecture of Canada’s IP system to accommodate Aboriginal creativity and knowledge production (Dagne, Reference Dagne2017; Oguamanam, Reference Oguamanam2017).

Conclusion

Many challenges exist for multi-level governance of ABS in Canada. These include a profound lack of trust on the part of Indigenous peoples (TRC Report, 2015); the Indian Act, which was designed to reconstitute Indigenous governance in subordination to others and usurps Indigenous authority and responsibility to deal with their own problems in an effective way (Borrows, 2016); continued reliance on the Doctrine of Discovery to support Crown sovereignty and perpetuate the current colonial order (Gunn, Reference Gunn2007; Hoehn, Reference Hoehn2016; Nichols, Chapter 4); the lack of provincial and territorial engagement with Indigenous peoples on a nation-to-nation basis, including FPIC for natural resource use; and lack of legal clarity on the status of GR and TK. TRC Recommendation 47 speaks directly to many of these issues, calling upon federal, provincial, territorial and municipal governments to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, and to reform the laws, government policies and litigation strategies that rely on such concepts.

The federal government enunciated principles provide a constructive starting point for dialogue with the Indigenous peoples on an ABS framework for Canada. As argued in this chapter, a just ABS arrangement must be based on the recognition and implementation of the right to self-determination and inherent right of self-government, as well as recognizing self-government as part of cooperative federalism and distinct orders of government. Reconciliation must be at the heart of any such dialogue, as a fundamental purpose of s. 35, the basis for treaties, agreements and other constructive arrangements, and as an ongoing process in the context of evolving Indigenous-Crown relationships, based on the honour of the Crown. Respecting and implementing s. 35 rights requires meeting a high legal threshold for infringement, ensuring FPIC for actions that impact rights over lands, territories and resources, and recognizing distinctions to ensure that the unique rights, interests and circumstances of the First Nations, Métis and Inuit are acknowledged, affirmed and implemented. With adequate consultation, ABS can help create the renewed fiscal relationship needed to promote a mutually supportive climate for economic partnership and resource development. Developing Aboriginal-sensitive ABS in Canada will be an arduous and lengthy task, but it can help set an important precedent that moves Canada concretely past its colonial legacy and advance the high demands required of reconciliation and a true nation-to-nation relationship with its Indigenous peoples.

Introduction

Canada is the second largest country on Earth, spanning the continent of North America and encompassing some 10 million square kilometres of varied terrain, ecosystems and geo-ecological regions. These include a large number of distinct forest biomes – boreal, mountain, temperate – and parklands; freshwater lakes, and diverse tundra ecosystems (arctic coastal, foothills and Baffin coastal, to name just a few). With the world’s longest coastline – nearly 250,000 kilometres – Canada touches three oceans; the Pacific Ocean on its west coast, the Atlantic Ocean on its east, and the Arctic ocean in the north.

Due to its size and latitudinal breadth, Canada’s forests, prairies, wetlands, tundra, freshwaters and marine areas are rich in biological diversity, and house plant and animal genetic resources (GR) with novel applications in commercial, industrial, pharmacological, cosmetic and conservation contexts (Environment Canada [1], 2010). Canada’s incredibly rich and varied repository of GR across its complex ecological regions makes it a key player in the growing international marketplace for the supply of GR. In addition, Canada’s diverse Indigenous peoples and their equally diverse traditional knowledge systems makes the country a key repository of not only GR but also of associated traditional knowledge (Oguamanam, 2011). Canada is already one of the world’s leading biotechnology countries (CBAC, 2002; Biotech around the World, 2008), a situation that underscores its status as both user and provider of important GR.

Through much of the literature on access and benefit-sharing (ABS), countries tend to be categorized as either ‘providers’ or ‘users’ of genetic resources. This simplistic binary actually enjoys little or no empirical justification (Hodges & Langford, Chapter 2) and obscures the status of biodiverse countries like Canada which ought to naturally act as both provider and user of GR and associated traditional knowledge (Oguamanam, 2011). Like Indonesia, Brazil, Australia, South Africa, India and several other biodiverse countries, Canada’s reality as both user and provider of GR demands particular legal and policy responses to the challenge of sustainable management and use of GR and associated traditional knowledge. By positioning itself as only a user, Canada ignores these realties and undermines the need for a balanced and urgent policy decision on domestic ABS implementation (ibid.).

Canada’s inclination to cast itself soley as a user rather than a provider of GR means Canada fails to consider its own vulnerabilities when it comes to biopiracy. By ignoring this possibility, Canada also conveniently ignores the very real and growing problem of biopiracy across Indigenous lands which involves associated traditional knowledge in the quest for new drugs, cosmetics, natural products and other R&D applications and opportunities. Acknowledging this truth is a critical first step; as indicated by Oguamanam and Hunka in Chapter 3 of this volume, Indigenous peoples in Canada have much in common with their counterparts in the global South, where biopiracy of genetic resources is widespread and well documented. (Oguamanam, 2004). Canada seems willing to acknowledge this reality so long as it is occurring somewhere else, investing substantial sums of money in capacity-building and development assistance in the global south, while ignoring the similar plights and development deficits of Indigenous peoples within its own borders (Oguamanam & Hunka, Chapter 3).

This attitude, which reflects Canada’s colonial relationship with its Indigenous peoples, is currently relevant courtesy of the Justin Trudeau administration, which has committed to reconciliation and the renewal of a nation-to-nation relationship with Indigenous peoples based on their inherent rights of self-governance and self-determination. Canada now finds itself at an inflection point; will it recast itself as both a user and provider of GR, and truly grapple with the problem of biopiracy as it applies to its Indigenous peoples and their traditional knowledge? Is Canada truly ready to implement a domestic ABS regime, and support the grassroots efforts of Indigenous communities in Canada to exchange knowledge and best practices with their counterpart communities in the global south (Oguamanam & Hunka, Chapter 3)? Can all of these be accomplished before melting sea ice and other manifestations of a warming climate open Canada’s Arctic to further exploitation?

This chapter maps out this important conversation, exploring the lacklustre efforts in Canada over biopiracy and ABS and current realities on the subject and suggests possible routes the country might take in implementing ABS in a manner consistent with reconciliation. Through a selection of recent examples, we examine where biopiracy is currently taking place in Canada, where it is likely to take place in the near future, and how the uncertain legal environment is exacerbating these trends. In doing so, we observe that while research ethics may play a role in constraining instances of biopiracy, they alone are insufficient to combat this phenomenon in Canada; rather, along with other practical policy measures, including Indigenous self-governance premised on truly nation-to-nation relationships, Canada can and must pursue an Indigenous-friendly ABS policy as a way of enhancing biodiversity conservation and stemming abuses of Indigenous knowledge in Canada.

Throughout the chapter, we illustrate how the continuing failure to work with Indigenous communities could undermine Canada’s efficacy in fostering biodiversity conservation and combatting climate change, while also undermining the prospect of reconciliation with Indigenous peoples. Relying on the outcome of recent ABS Canada field work, we briefly sketch out a possible path forward should Canada decide to accede to the Nagoya Protocol and implement ABS into domestic law in a manner consistent with reconciliation.

Canada’s Contemporary Reality: Flashpoints of Biopiracy and the Mitigating Role of Research Ethics

In the absence of a pan-Canadian ABS regime and federal and provincial laws that incorporate Indigenous sensitivities or Indigenous community protocols on ABS, it is unsurprising that biopiracy is occurring on Indigenous lands across Canada. Spruce gum, long used as a medicine and considered sacred by many Canadian Indigenous communities (Kuhnlein & Turner, Reference Kuhnlein and Turner1996; Johnson, 2008) like the Dene, has become a mass-produced consumer product that sells online for as little as five dollars per jar (CBC, 2017). Companies like Laughing Lichen Wildcrafted Herb & Tea and Canadian Outdoor Equipment retail various salves and ointments made from spruce pitch that, at best, offer cursory acknowledgements of its traditional uses amongst Indigenous communities. In Thunder Bay, Ontario, two hunters started a company called Gruntz which manufactures lozenges made using balsam fir – an ingredient long used by Indigenous healers for its antiseptic properties (Kuhnlein & Turner, Reference Kuhnlein and Turner1996). Gruntz appears to harvest the materials for this product from the traditional territory of the Fort William First Nation south of Thunder Bay and makes no mention of balsam fir’s traditional uses in their marketing materials (CBC, 2016).

Aside from raising the alarm through media, it appears that the only force at work constraining biopiracy are researchers who approach bioprospecting in an ethical and transparent way. In Northern Quebec, researchers have long been interested in the antidiabetic properties of a few medicinal plants traditionally used by the James Bay Cree. In 2003, a group called the Canadian Institutes of Health Research Team in Antidiabetic Medicines (TAAM) was formed in an effort to unite university researchers and local communities to confront a double-edged epidemic: extremely high rates of diabetes, and Indigenous patients whose physiology rendered conventional medical interventions less effective (Currieur et al., 2012). The lead researchers involved in the project were aware of the CBD and Canada’s obligations to ensure ‘the fair and equitable sharing of benefits arising out of the utilization of genetic resources.’ Given the lack of any regulatory framework or policy guidance, these researchers took it upon themselves to develop a comprehensive research agreement, including an ABS component. As explained by several contributors to this volume (Burelli, Chapter 13; Dylan, Chapter 5; Oguamanam, Chapter 11), there is no shortage of initiatives on the part of Indigenous peoples to hold researchers and bioprospectors accountable in their dealings with GR and associated traditional knowledge. For example, researchers like TAAM have essentially developed them on an ad-hoc basis, as is often the situation in other cases.

Pursuant to TAAM’s agreement with the Cree, the Cree Board of Health would help identify participant communities, and Cree elders would assist researchers in identifying and locating samples of the plant material with antidiabetic properties. The agreement also included an extensive review process, allowing Cree participants to screen research findings prior to publication. The agreement also allows for the withdrawal of any Cree participants from the research process at any time and specified that no pharmaceutical companies could be involved in the research (Currieur et al., 2012). In addition, the entire project would not be profit driven, but oriented around the goal of culturally relevant therapeutic interventions for Cree suffering from diabetes. The Cree would retain ultimate control over how their TK would be presented to the public at the conclusion of the project, in a manner consistent with the OCAP¹ principles (Oguamanam & Jain, Reference Oguamanam and Jain2017). Finally, if the researchers developed any novel therapy through use of Cree TK, the Cree Board of Health (via monitoring teams made up of traditional Cree healers and Western physicians) would share responsibility for administering the therapy to members of the community.

The TAAM team was wary of accusations of biopiracy and had a strong understanding of the level of mistrust felt in many Indigenous communities towards outside researchers claiming to act in their best interests. These fears are not misplaced – it is well documented that research conducted with Indigenous peoples has historically failed to benefit them (Canadian National Collaborating Centre for Aboriginal Health, 2012). In fact, research has often been ‘harmful or … counterproductive to improving health, and [is] insensitive, intrusive, and exploitative’ to Indigenous participants (Geary et al., Reference Geary2013, 1; Oguamanam, Chapter 11). Accordingly, TAAM placed trust at the very centre of their interactions with the Cree. Researchers made a point of personally interacting with community members in order to build familiarity and a sense of common purpose. Skepticism expressed by Cree elders that their traditional medicines would be stolen or misused was addressed directly, including explicit oral promises by the project leaders to the elders to respect their traditional knowledge. After elders had identified 17 promising plant species and helped the researchers to locate viable samples for clinical study, researchers collected them in accordance with Cree customs and traditions, including the performance of tobacco rituals and the saying of prayers to thank the Creator.

Another issue encountered and addressed effectively by TAAM was the fundamental difference in worldview between Cree healers and Western scientists, a divide echoed in other Canadian ABS literature and the field work conducted by ABS Canada (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017). For the Cree, all knowledge is considered a gift from the Creator, which imbues it with a sacred quality that requires the Cree to act as its fiduciary guardians. The notion that their traditional medicines could ever be turned into commercial products directly challenged this worldview, and acknowledgement of the Cree understanding of the origins, value, and purpose of knowledge had to be central to any arrangement with the TAAM researchers.

To address these concerns, an ABS agreement was concluded. It acknowledged the Cree as the guardians of knowledge gifted from the Creator; pursuant to which there is an express ban on any non-authorized commercialization of research and derivative innovations, including a prohibition against commercializing any resulting intellectual property associated with the project. No intellectual property protection could be sought without the express prior and informed consent of the Cree participants. All Cree traditional knowledge was kept confidential by default, with disclosure limited to that which was expressly authorized by participating Cree communities, and only after those communities had received approval from their Elders.

The benefit-sharing arrangement between TAAM and the Cree included the creation of a not-for-profit corporation to be run by the Cree that would administer any potential monetary benefits derived from the research project. A commitment was made that a portion of any monetary benefits would be set aside to fund scholarships to train Cree youth to learn about TK from their elders, and to create and distribute educational materials promoting the benefits of preserving TK. In addition, the reanimation of the Cree language through the use of Cree terminology for medicinal plants used in the study was seen by all parties as an important non-monetary benefit derived from the research, as it led Cree youth and Western researchers to adopt traditional Cree vocabulary (Currieur et al., 2012).

Arctic and Marine Areas: Emerging Bioprospecting Hotspot and ABS Flashpoints

Canada’s expansive Arctic territory is perhaps one of the largest ‘untapped’ sources of GR in North America. Its low population density (the north is home to approximately 120,000 people spread over 40% of Canada’s entire landmass) and extreme weather is contrasted with the region’s incredible biodiversity, which includes 140,000 unidentified plant and animal species, and over 68,000 species that have been identified but not described in the scientific literature (Environment Canada [2], 2006). In addition to the sheer number of species in this diverse biome, it is the inherent resilience of these plants and animals that is drawing increasing scientific curiosity and attention. Life able to withstand the harsh weather in the North will naturally possess interesting genetic characteristics with wide-ranging commercial applications (Geary et al., Reference Geary2013).

Marine GR have attracted considerable attention and are a growing focus of corporate research investment in Arctic jurisdictions such as Greenland, Russia and the Nordic countries (UNU-IAS, 2008). Over 40 companies are currently engaged in research, development and sale of products derived from GR sourced in the Arctic and surrounding waters. (UNU-IAS, 2008). This large-scale bioprospecting has not been similarly documented in Canada’s Arctic, where little is presently known about the pharmacological potential of Arctic plants and animals. This is due, in large part, to the lack of tracking and monitoring in Canada, which has been done in other jurisdictions to gain a sense of the scale of bioprospecting, biotechnology development and research into possible GR (UNU-IAS, 2008). As of this writing, no patents have been issued for any product or process derived from Arctic GR in Canada.

This lack of patent activity belies the rapidly growing interest in GR in Canada’s North. Arctic seaweed species have recently generated significant research activity both because of their relative abundance along Arctic shorelines and because of the diversity of possible commercial applications, ranging from food products to pharmaceuticals (Environment Canada [2], 2006). Over 2,000 species of seaweed have been identified in Canada’s North alone, of which 184 are used by the local Inuit peoples for food and medicine. Rhodiola rosea, known locally by its Inuit names Tullirunaq or Utsuqammat, has been used for thousands of years as a tonic. This is just one example of seaweed that is drawing increasing interest from the biotechnology and pharmaceutical industries interested in refining and commercializing Rhodiola rosea into an easy-to-produce consumer product (Environment Canada [2], 2006).

The limited reporting that is available suggest that in situ bioprospecting in the Canadian Arctic is currently narrow in scope. For example, the University of Prince Edward Island’s Marine Natural Products Lab recently conducted small-scale research projects examining marine mud in search of microbes with commercial applications for the pharmaceutical and cosmetics industries (Kerr, Reference 136Kerr2012). Some other examples include Neuronascent Inc., an American biotechnology company that is seeking to develop therapeutic products for Alzheimer’s patients through research conducted on the Arctic ground squirrel (Spermophilus parryii), a species whose habitat range includes the Yukon, Northern BC, and portions of the Northwest Territories. Also active in Canada is A/F Protein Canada Inc., another American firm with a processing facility in Newfoundland and Labrador that is developing advanced anti-freeze proteins for use in the food processing industry that were developed from a variety of Arctic fish (UNU-IAS, 2008).

Intense research interest in GR in other Arctic jurisdictions, and the anecdotal reporting on current bioprospecting projects in Canada’s north show that bioprospecting is a policy problem that is already here, and growing more pressing with time (Dylan, Chapter 5). As climate change contributes to melting permafrost and sea ice, Canada’s Arctic will only become a more inviting and accessible environment for bioprospecting in the coming years, particularly if in situ GR collected in other Artic jurisdictions continue to be successfully commercialized and protected through intellectual property rights (IPRs). While this is occurring, the Government of Canada remains equivocal on the Nagoya Protocol and the legal status of these resources; the regimes governing their access remain unclear (ibid.).

As noted, a paucity of information regarding the scale of ongoing bioprospecting in Canada’s Artic region is one possible factor contributing to our limited understanding of the scope of GR and research involving the region. Another factor is the nascent but nonetheless fairly sophisticated, albeit inchoate, access regimes that have been developed in parts of some of the northern territories, particularly Nunavut (ibid.). While Canada lacks an overarching ABS policy for the entire country, Nunavut has a framework of sorts already in place that is derived from that territory’s constitutive document, the 1993 Nunavut Land Claims Agreement (NCLA) and other laws. Unfortunately, as Daniel Dylan (Chapter 5) has noted, the Nunavut regime neither includes benefit-sharing nor cover genetic resources-related research.

Nonetheless, the landmark agreement between the Government of Canada, the Government of the Northwest Territories and the Tunngavik Federation of Nunavut (an organization representing the interests of the Inuit) recognized Inuit control of a large swath of eastern Northwest Territories as their own self-governing territory. This represents the largest single land claims agreement between Canada and Indigenous peoples in Canada’s history. Nunavut, which formally came into existence on 1 April 1999, includes over 1.8 million square kilometres of land and more than 160,000 square kilometres of the Arctic ocean, a combined area larger than Western Europe and comprising 21% of Canada’s total land mass.

The NLCA grants the Inuit a right of first refusal on the commercial use of wildlife, which includes organisms like microbes (1993). The NCLA further prioritizes Inuit access to fish stocks and Inuit ownership interest in harvested marine resources (Greer & Harvey, Reference Greer and Harvey2004). The Government of Nunavut has also established the Nunavut Research Institute, which operates a permitting system for researchers hoping to conduct field work in the territory and which requires licences for studies involving terrestrial and marine mammals, birds, and vegetation. The Institute also requires researchers to apply for permits to collect samples of any aquatic organisms (including plants, fish and marine mammals) for scientific purposes, and under certain circumstances, requires research to undergo environmental impact screening (Nunavut Research Institute, 2017). This access regime, described in greater detail by Dylan in Chapter 5 is the reason the Inuit were able to effectively deny a major research company access to Inuit fish stocks for the purposes of genetic research in 2001.

After the NCLA came into force, Canada’s federal Department of Fisheries and Oceans (DFO) issued new restrictions requiring the consent of local communities before it would issue any fishing, harvesting, or farming permits. In response to these new restrictions, a major char fishing company called Icy Waters Ltd. partnered with local Inuit communities and an Ontario university (Greer & Harvey, Reference Greer and Harvey2004) to take advantage of the increasing popularity of Arctic char in the diets of southern Canadians and create an enhanced revenue stream for local Inuit fishers. In the resulting joint venture, each of the 7 participating Inuit communities were given a 5% equity stake, and in in exchange Icy Waters Inc. would gain access to the reproductive material of male Arctic char found in nearby waters. While each Inuit community would retain ‘ownership’ over the fish contributed to the research, the joint venture would be the exclusive owner of any intellectual property in the hybrid lines developed from their proprietary cross-breeding technique. In addition, the participating Inuit communities would be permitted to use the ‘genetically improved’ final product and would ostensibly enjoy non-monetary benefits in the form of experience and transfer of technology in ‘modern’ fish farming techniques (Greer & Harvey, Reference Greer and Harvey2004).

Ultimately, the Inuit communities involved in the joint venture withdrew their consent; they felt that Icy Waters’ approach to the project showed a major lack of respect for the Arctic char, and expressed their belief that the spirit of the fish would return to take revenge on the local Inuit people for allowing the char to be taken from its home and subject to genetic experimentation and manipulation (Greer & Harvey, Reference Greer and Harvey2004). In addition, the particular genetic subpopulation of Arctic char that interested Icy Waters happens to grow extremely slowly and is highly susceptible to overfishing, another significant concern to the local community that relied in part on the Arctic char for sustenance. The fact that the local Indigenous community had a substantial degree of control over their resources, and a say in how the GR on their traditional territory could be accessed and used – including the legal authority to deny their consent to Icy Waters – provides an essential case study in the story of ABS implementation in Canada (Greer & Harvey, Reference Greer and Harvey2004).

Nunavut is not alone in having developed nascent access regimes that de facto regulate bioprospecting for in situ GR. In Canada’s Yukon territory, for example, settlement agreements with local Indigenous nations emphasize Indigenous peoples’ primary control over settlement lands, which has typically been construed to include rights to legislate for themselves in areas related to culture and resource management (Environment Canada [2], 2006). Laws passed by Indigenous communities therefore take precedent over territorial laws, ensuring that de jure legislative competence in these areas is manifested concretely in the day-to-day management of natural resources. The territorial Government of Yukon also requires any non-resident researchers to apply for access permits before conducting any research in the territory. The government’s practice is to consult with Indigenous communities whenever out-of-jurisdiction researchers wish to obtain permits that encroach on Indigenous settlement lands (Environment Canada [2], 2006).

An example of an Indigenous community in the Yukon effectively exercising their jurisdictional competence in the areas of resource management are the Gwich’in people, whose traditional lands span approximately 20,000 square kilometres in the northern portions of the Yukon and Northwest Territories. According to the terms of the 1992 Gwich’in Comprehensive Land Claims Agreement, the Gwich’in were granted preferential hunting and fishing rights across the whole of the settlement area, and an extensive say in land use planning (Gwich’in Tribal Council, 2017). In 1998, the Gwich’in annual assembly passed a motion authorizing the Gwich’in Tribal Council to develop an official policy on traditional knowledge, both to clarify the Gwich’in peoples’ role as guardians of that knowledge and to spell out precisely how outside parties would be able to access and use their TK in the future.

The policy specifies that anyone seeking to use or access Gwich’in traditional knowledge may only do so with the full, prior, and informed consent of the community. The policy also spells out, in granular detail, the processes to be followed in seeking out consent, conducting research, reviewing findings and providing compensation to TK holders and Elders in the community (Gwich’in Social and Cultural Institute, 2004). The Gwich’in mandate that their social and cultural bodies be given an opportunity to examine data before it is published, and to comment and make corrections before any findings are made public. The Gwich’in TK policy also includes template agreements, and a 17-point guide on what elements must be incorporated in an informed consent statement, including clauses allowing Gwich’in traditional knowledge holders to opt out of research at any time, and a requirement that agreements be concluded in the traditional Gwich’in language where the use of English may generate misunderstanding (Gwich’in Social and Cultural Institute, 2004).

The Gwich’in in the Yukon and Northwest Territories remain one of the few Canadian Indigenous communities that have developed complete or substantially complete guidelines for ABS in relation to genetic resources and associated Indigenous TK in Canada. As Daniel Dylan (Chapter 5) has demonstrated, the extent to which the Inuit in Nunavut could be included in that category is tenuous. The common thread linking these communities is the relatively advanced status of their comprehensive land claims and self-governance agreements with the territorial governments and the Government of Canada. Indigenous self-governance and fully settled land claims remain the exception rather than the rule throughout the remainder of the country.

Canada’s Official Approach to ABS Implementation: A Critical Assessment

Canada’s record on ABS is decidedly mixed and can be characterized by an early period of proactive movement followed by a decline in federal activity over time (Hodges & Longford, Chapter 2; Mason & Brodeur, Reference Mason, Brodeur, Mason and Roy2013). Canada was an early ratifier of the 1992 CBD and was actively involved in the negotiation of the subsequent Nagoya Protocol. However, it then failed to build on this critical early momentum after the Nagoya Protocol was concluded, creating a policy vacuum as bureaucratic resources were shifted elsewhere (Hodges & Langford, Chapter 2). The fieldwork conducted by ABS Canada has revealed that many Indigenous communities across Canada have never even heard of ABS, the CBD, and the Nagoya Protocol. (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017). This is not to suggest that Indigenous communities need to develop specific expertise in order to protect their lands and their knowledge. Rather, it suggests a compelling case for capacity-building and capacity development that the federal or any other cadre of government has so far failed to facilitate or deliver (Oguamanam & Hunka, Chapter 3).

The Trudeau government’s commitments to combatting climate change, preserving biodiversity and rebuilding Canada’s relationship with Indigenous peoples on a nation-to-nation basis pursuant to national reconciliation will not succeed unless it revisits the ABS file especially through the lens of reconciliation and nation-to-nation relationships. This will require a fundamental policy rethink. Canada’s current policy guidance on domestic ABS implementation makes it clear that its overriding objective is to position itself as a global player in biotechnology (Environment Canada [3], 2009; Government of Canada [2], 2010). While the importance of biodiversity conservation and preservation of Indigenous TK are acknowledged, the underlying policy objectives make clear that these are seen as obstacles to be managed rather than foundational principles to be encouraged. Indigenous knowledge is essential to biodiversity conservation, and biotechnology growth will be stunted without access to Indigenous traditional knowledge of plants and animals (Oguamanam, Reference Oguamanam2005, Reference Oguamanam2006a, Reference Oguamanam2012; Gillespie, Reference Gillespie2011).

Given the lack of ABS policies across the country, the relative disinterest (at best) of some provincial government stakeholders, the absence of broad corporate awareness, and the lack of knowledge and capacity among many Indigenous communities, the federal government stands to play a central role. Yet Canada’s proposals for domestic implementation reflect a disconcerting tendency to ignore or marginalize Indigenous perspectives or the role to be played by Indigenous orders of government (Perron-Welch & Oguamanam, Chapter 6).

As of this writing, Canada proposes three possible ABS implementation strategies. The first involves developing a national ABS regime built upon ‘common principles and core elements.’ Implementation would be jurisdiction specific, but the focus would be on creating as much clarity and consistency across the country as possible – this is similar to the Australian approach (Wright, 2017; Phillips, Chapter 9).

The benefits of a harmonized national regime are fairly obvious. It will create a consistent regulatory environment, facilitating access for out-of-country interests, and thus help drive the twin goals of promoting Canadian competitiveness in the bio-based economy and supporting scientific research and development. Second, a national approach would provide some clarity with regards to transboundary GR, which as their name implies straddle or transcend the legal and political entities that regulate them. Third, this approach would help fill in some of the gaps in the Canadian landscape by helping jurisdictions that currently lack their own ABS policy or whose policies are currently underdeveloped. In this formulation, the Gwich’in and other communities or nations that have already developed licensing regimes or ABS-like regulatory schema would be able to maintain their existing systems provided they meet or exceed national criteria and a set of common standards.

A significant drawback of this approach is that it fundamentally underestimates the challenges of negotiating a harmonized set of standards amongst over a dozen different jurisdictions with very different economies, resource profiles, and political cultures. The notable failure to include Indigenous perspectives in this approach will also create fundamental issues of mistrust and suspicion. Indigenous communities will (rightly) perceive a national framework as an ‘imposition’ of federal standards in contravention of their own inherent rights to control the GR on their traditional lands (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017). While striving for a national or unified framework, the incredible diversity of Indigenous nations (73 in all) in Canada and their varied perspectives on sharing traditional knowledge requires the balancing of such a framework with local sensitivities. Any approach developed by Ottawa and the provinces that excludes Indigenous orders of government fails to do so.

The second approach explored by the Government would accept the challenges of differing interests and perspectives by forgoing a national set of standards altogether in favour of an independent approach in each jurisdiction (again, here narrowly construed as provincial and territorial governments only). This would allow each province and territory to develop ABS policies that accord with their particular contexts and needs, which has the obvious benefit of accelerating implementation. However, it could result in a widely divergent patchwork of policies, creating an uncertain regulatory environment that would be costly and time consuming for researchers to understand and navigate, and it also fails to respond to the challenge posed by transboundary GR.

The final approach considered is by far the most centralized: a single, unified federal policy equally applicable in all Canadian provinces and territories. The federal government would do all of the heavy lifting in terms of policy scoping and development, which would accelerate the implementation process and create the greatest certainty for researchers and other stakeholders seeking to extract or use in situ GR on Canadian territory. Given the constitutional division of powers in the Canadian federation, however, this policy would necessarily be incomplete – conceivably, federal jurisdiction over GR only extends to those found on federal Crown lands or stored at federal research, recreational or conservation facilities, whereas provinces and territories have jurisdiction over GR on provincial/territorial Crown lands, in addition to their constitutional competence over property law and natural resources writ large. Since these lands (federal, provincial and territorial) have actually been Indigenous lands from time immemorial, in situ GR on those lands that are associated with Indigenous TK also engage an exclusive Indigenous claim to jurisdiction and control, and current proposals simply do not contemplate these complex legal issues.

Perhaps aware of these jurisdictional and legal hurdles, Environment Canada has concluded that not including Indigenous TK in a Canadian ABS policy would ‘simplify the development and implementation’ of such a policy (2009, 15). While technically true, this would surely undermine whatever trust is left between Indigenous peoples and the federal government, compromising other good faith efforts to reconcile Crown sovereignty with pre-existing Indigenous cultural and legal orders. The federal government has already driven a rift between itself and Indigenous communities by consulting so poorly on ABS to date, and by failing to meaningfully include Indigenous perspectives and worldviews as it participated or participates in the negotiation of international instruments like the CBD, Nagoya Protocol and ongoing WIPO-IGC.² Given the centrality of Indigenous traditional knowledge to the policy debate on ABS over GRs, this approach is frankly a non-starter in the debate over the appropriate method of implementing ABS into domestic law.

If the government is truly committed to a process of equity, justice and reconciliation with Indigenous peoples, the inclusion of their perspectives on ABS must be one of the starting points. This will require deep and meaningful consultation, and perhaps a much broader reconceptualization of the way intellectual property, traditional knowledge, biodiversity conservation and Canada’s goal of economic opportunity through biotechnology innovation meet and interact in law, justice and social policy. Such is, however, the promise of reconciliation – a rethinking of the relationship and an even deeper critiquing of the social and legal arrangements that animate, constrain and perpetuate it.

At a practical level, inclusion of Indigenous perspectives and involving Indigenous orders of government mean that domestic implementation of ABS will resemble a national set of minimum standards governed by best practices and extensive consultation. This policy must be implemented in accordance with jurisdiction-specific realities – including, especially, the reality of Indigenous rights as guaranteed under s.35 of the Constitution Act, 1867 at the minimum and true self-governance in the context of reconciliation and meaningful nation-to-nation relationship. The choice is Canada’s to make, but the bioprospecting drive in the Artic, in marine ecosystems, and in other biodiverse parts of the country illustrate the imperative of embarking on this conversation sooner rather than later.

The Self-Governance Imperative for ABS

In conducting the field work in advance of this volume, ABS Canada has extensively documented the extent to which Indigenous communities believe the threshold issues in Canadian conversation on ABS is the conclusion of land claims agreements, the faithful execution of historical treaties, formal recognition of their inherent rights as guaranteed under Section 35 of the Constitution Act, 1982, and the overarching reconciliation of Crown sovereignty with the Indigenous occupation of Canada prior to European contact (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017). Without Indigenous control over resources and a say in how external stakeholders access these resources, the notion of an ABS policy that is sensitive to Indigenous interests remains a hollow promise.

Since control over resources necessarily flows from recognition of Indigenous ‘title’ (although Indigenous worldviews categorically reject this framing of their relationship with the land in terms of ownership and control)³ – Canada must uphold the original treaties, complete the comprehensive land claims process, and recast its interactions with Indigenous peoples as truly nation-to-nation conversations (Perron-Welch & Oguamanam, Chapter 6; Nichols, Chapter 4). Given the obvious financial, legal and logistical hurdles implicated in this urgent national project, Canada is under a heightened obligation to seek out Indigenous perspectives on what ABS should look like in the domestic context, and to provide meaningful support for the kinds of capacity building required at the community level (Oguamanam & Hunka, Chapter 3). Such organizational and governance preparedness as an incidence of self-governance would enable the Indigenous peoples of Canada to establish the culturally relevant ABS regimes essential to preserving TK and ways of life, while balancing the economic ramifications of ABS (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017).

There has been some early recognition of the importance of Indigenous self-governance over traditional lands and marine areas. The federal government recently announced an ambitious cooperative marine-management agenda under which the Inuit of Labrador will ‘use their traditional knowledge to develop a marine-management plan that would cover 380,000 square kilometers of coastal waters on the far eastern end of the Northwest Passage’ (Galloway, Reference Galloway2017). This scheme would see the Inuit play a key role in regulating ‘shipping, resource extraction, water quality, species management, conservation of historical sites, and other matters of [local] importance … as climate change and the decline of Artic sea [opens] the passage to an increasing amount of ship traffic’ (ibid.). This cooperative marine-management plan is timely and symbolic in several different ways. First, it is an agreement between the federal government and the Nunatsiavut; the first Inuit self-governing region recognized by the Government of Canada. This reflects the importance of self-determination as a framework for ABS, reconciliation and justice. Second, the cooperative management plan highlights the disruptive effect of climate change on Indigenous lifestyles and the need for a proactive policy response in partnership with the Indigenous peoples who are directly impacted. Third, the arrangement recognizes that Indigenous knowledge provides key insights for climate change adaption and mitigations strategies, and in regard to cognate areas including, for example, the development of polar data infrastructure (Scassa & Taylor, Reference 137Scassa and Taylor2017) and for resulting economic opportunities.

Drawbacks of Non-Recognition of Indigenous Self-Governance

Through the current situation in which, save for few cases, there is no robust Indigenous self-governance agreements, Indigenous communities have remained pragmatic, forging different forms of ABS-related arrangements and protocols in partnership with researchers (Burelli, Chapter 13). However, since there is no extant ABS regime, (in particular, one sensitive to Indigenous interests) Indigenous communities remain at the mercy of Canada and the provinces and territories to protect their rights over traditional knowledge. This situation urgently requires those levels of government to enact ABS regimes, as well as environmental laws and regulations that embody and reflect Indigenous interests and perspectives.

Unfortunately, Canada has failed to meet this obligation to enact environmental laws and regulations that reflect Indigenous perspectives and further Indigenous interests (McDermott & Wilson, Reference McDermott and Wilson2010). One example is the federal Species at Risk Act (SARA). SARA was legislated to meet Canada’s commitments to the Convention on Biological Diversity by providing protection for endangered organisms and their habitat within federal jurisdiction. Section 8.1 of SARA called for the creation of the National Aboriginal Council on Species at Risk (NACOSAR) to advise the federal Minister of the Environment and Climate Change on the implementation of the Act and provide advice and recommendations to the Canadian Endangered Species Conservation Council (CESCC), a federal/provincial/territorial Ministerial body (Government of Canada, 2017). The advisory status of the NACOSAR, despite the vast and expansive TK held by Indigenous peoples who have lived sustainably on the land throughout Canada for millennia, is suggestive of the low esteem the government actually attaches to Indigenous TK. The failure to rely on Indigenous perspectives in conservation and species at risk protection does not bode well for the development of a Canadian ABS regime.

Environmental assessments, to cite another example, are one of the few legal means Canada’s Indigenous peoples have to effect environmental policy through formal processes. However, the Canadian Environmental Assessment Act does not currently require the consideration of Indigenous traditional knowledge in the assessment process (McDermott & Wilson, Reference McDermott and Wilson2010). CEAA, 2012 merely gives responsible authorities the discretion to consider ‘Aboriginal traditional knowledge’ in any EA (Government of Canada, 2016). The Trudeau government’s review of the environmental assessment and regulation-making process suggests some recognition of this problem, with proposals for requiring more Indigenous input in future assessments (Government of Canada, 2017). However, even this fairly comprehensive review is totally silent on the incorporation of ABS as an environmental assessment and regulatory consideration (Oguamanam, Koziol, Lesperance & Morales, Reference Oguamanam, Koziol, Lesprance and Morales2017). Presently, Indigenous knowledge, practices and associated customary laws over sustainable living in and with the natural world have yet to factor into Canadian policymaking. Without self-governance, self-determination and respect for the sanctity of constitutionally affirmed treaty rights, it will remain challenging to integrate traditional knowledge and practices of Indigenous peoples into Canada’s colonial legal regime.

Arguably, Canada’s web of statutory and regulatory protections for the environment would be strengthened and better able to accomplish their conservation goals by meaningfully considering Indigenous perspectives. For most Indigenous communities, the relationship between human beings and the natural world is one of interconnectivity and mutual interdependence. The Algonquin people of Eastern Ontario use the term Ginawaydaganuk to describe this worldview. More than merely a descriptive phrase, Ginawaydaganuk is a principle of Algonquin law which outlines the responsibilities of human beings to one another and to the Earth; similar to the African philosophy of interdependence and interconnectedness, Ubuntu.⁴ It stresses the importance of considering the cumulative impact of actions on the entire web of life, and reflects an Algonquin understanding of ‘sustainability’ that sees human beings and nature as a singular whole (McDermott & Wilson, Reference McDermott and Wilson2010).

This perspective on humanity’s relationship with the natural order can be found across Indigenous cultures, not only in Canada, but around the world, and was repeatedly emphasized to researchers from ABS Canada throughout our focus groups in Moncton (home of the Maliseet & Mi’kmaq), Ottawa (home of the Algonquin), and Saskatoon (home of the Cree and homeland of the Métis peoples) (Oguamanam, 2010; ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017).

Not only are Indigenous perspectives, customs, laws and protocols generally not reflected in Canadian law, Canada has failed to follow through on its (laudable) initial efforts to engage Indigenous peoples on the subject of ABS (Hodges & Langford, Chapter 2). Canada has not held any formal ABS consultations with Indigenous peoples since 2010, and those limited, ad-hoc consultations were generally considered inadequate by many of those communities who were able to participate (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017). Canada does not support the attendance of Indigenous participants to global fora engaged in negotiating international legal instruments on the subject of TK and IPRs and has refused to ratify the Nagoya Protocol and implement any form of ABS into domestic law (Mason & Brodeur, Reference Mason, Brodeur, Mason and Roy2013), ironically citing its own lack of appropriate and meaningful consultation with Indigenous peoples.

The result is untenable for Indigenous peoples. Canada has failed in its obligations to protect Indigenous rights over their traditional knowledge through implementation of ABS into domestic law, and/or the reconciliation of its own laws (e.g. environmental assessment regimes, IPR framework, and climate change initiatives) with Indigenous worldviews and customary laws. Since many Indigenous communities have yet to develop their own ABS frameworks, the end result is that Canada’s Indigenous peoples have little influence and limited or tenuous legal recourse when confronted with the rising tide of bioprospecting on their ancestral lands.

The real tool available for Indigenous communities hoping to mitigate biopiracy is to work with one another, collectively building and reinforcing their own capacity with the help of NGOs such as the ABS Capacity Development Initiative, the ETC Group, the Union for Ethical Biotrade and related others to drum up public outrage and condemnation. The faint hope is that negative media attention will constrain researchers and corporate interests from unduly exploiting Indigenous peoples’ GR and associated traditional knowledge in the interim.⁵ Unfortunately, the value of genetic resources is little-known to most of the public, and ABS remains a complex issue that is difficult to explain in media-friendly or easily accessible terms. The rise of digital DNA and digital sequencing information and their role in the de-linking of genetic resources from their natural sources and origins (Oguamanam, Chapter 11; Oguamanam & Jain, Reference Oguamanam and Jain2017), and the marginalization of Indigenous TK in Western scientific, legal and cultural paradigms only increase the scope of this public relations or public awareness challenge.

The Path Forward: Cultivating Indigenous Partnership for Reconciliation

A number of lessons can be distilled from the Canadian context and the cases examined in this chapter. Canada is without question both a provider and user of GR. Climate change represents a new dynamic with both challenges and opportunities that exacerbate the urgency of tackling the biopiracy problem. The intersection of climate change, biopiracy and ABS will become an increasingly fraught space as new GR are identified through increased bioprospecting activity in Canada’s Arctic, and in the rich and diverse marine ecosystems along Canada’s extensive coastlines.

Even though there are pragmatic initiatives between Indigenous peoples and researchers or bioprospecting entities to ensure just and fair practices, biopiracy is best prevented where deliberate ABS laws are in place. ABS regimes that are culturally sensitive and developed in accordance with Indigenous customary law, traditions and worldviews enhance the goals of biodiversity conservation and the preservation of traditional knowledge more than arrangements that ignore or marginalize Indigenous perspectives.

The examples of existing practices in Nunavut or in the Gwich’in settlement area in the Yukon and Northwest Territories, and the James Bay Cree in Northern Quebec (who live under the first comprehensive land claims settlement in Canadian history) suggest that Indigenous communities with legal control over their resources and the internal capacity to dictate access terms to outside interests are the most effective bulwarks against biopiracy. In addition, such an arrangement is one of the best ways to ensure the preservation and promotion of the Indigenous traditional knowledge which is the springboard for the utility and applications of those GR in the first place.

As affirmed by Bannister (Chapter 12) and Burelli (Chapter 13) in this volume, our analysis here reinforces the fact that many researchers are already sensitive to concerns about biopiracy and the importance of conducting research in line with the Tri-Council guidelines that specify the importance of doing research by and with Indigenous peoples (Tri-Council Policy Statement, 2010). Developing constructive partnerships that allow Indigenous communities to retain control over their GR and associated traditional knowledge rather than merely studying them in a way that undermines their sense of identity, inherent dignity, innovation and intellectual contributions is a clear pathway for Indigenous-friendly ABS policy.

The stage is now set for government to make a choice. When given the correct tools, Indigenous communities are capable of developing sophisticated and robust protocols to govern access to their traditional knowledge and associated GR on their lands (Oguamanam & Hunka, Chapter 3). The optimal pre-condition is Indigenous self-governance, but whatever the status of the particular community – whether under an original treaty, a self-governance arrangement, or a modern comprehensive land claim – Indigenous communities generally know what they wish to share and how they wish to share it (Oguamanam, Reference Oguamanam2018). They are also the best authorities on how to preserve the traditional knowledge that is essential to our understanding of the natural world and the ways to sustain its diversity and inherent balance (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017). Some communities already have these tools, with de jure control over their own lands and resources (Burelli, Chapter 13). Others have access to useful proxies, like government statutory and regulatory frameworks that prioritizes Indigenous rights to land and resources (Dylan, Chapter 5) accounting for and reflecting Indigenous worldviews, and requiring consultation when Indigenous interests and rights are engaged.

However, many more Indigenous communities lack either their own tools or the levers to affect relevant government processes. It is these communities that will be the sites of biopiracy in a future of increased bioprospecting activity and continued growth in the biotechnology industry. The scope and impact of this problem is therefore entirely contingent on how Canada opts to proceed on the ABS file. One option is to embrace what is proven to work and by so doing mitigate the worst effects of the coming bioprospecting boom (Phillips, Chapter 9). A turn towards the promotion of unfettered access and the unbalanced privileging of the biotechnology industrial complex will compound rather than mitigate the problem.

Conclusion

In this chapter, we have highlighted Canada’s unique status as both a provider and user country regarding GR and associated Indigenous or traditional knowledge. We have also charted the real and potential biopiracy flashpoints in Canada and their implications for Indigenous communities, especially in the context of Arctic and marine areas. We then reviewed Canada’s policy guidance on domestic ABS implementation and critiqued its failure to include Indigenous voices and perspectives and pointed out how it marginalizes Indigenous laws and orders of government. But as many other contributions in this volume affirm, the inchoate state of treaty interpretations and inconclusive comprehensive land claims and self-governance agreements constitute ongoing meaningful hurdles to the full involvement of Indigenous peoples as key partners in ABS. Notwithstanding these obstacles, Canada is under both a moral and legal duty to facilitate a regime of access to GR and associated Indigenous knowledge in a manner that is consistent with Indigenous customary laws, protocols and worldviews. This is not just the most effective pathway to biodiversity conservation, but a way forward that ensures equity, justice and reconciliation.

We argue that the most effective means of mitigating biopiracy over GR and associated knowledge of Indigenous peoples is by having Indigenous communities craft their own policies and access regimes, reflecting the overwhelming consensus of Indigenous voices in ABS Canada’s regional focus groups. Ultimately, an ABS policy for Canada can only truly succeed at reaching the lofty goals set out in the CBD when Canada develops that policy in cooperation with Indigenous peoples, on the basis of a nation-to-nation relationship grounded in the principles of trust, good faith, understanding and mutual respect.

Introduction

Indigenous nations and peoples in what is now called Canada have always had their own laws and legal orders.¹ Even though the colonial process and contemporary policies of the Government of Canada have had negative impacts on Indigenous societies, governance and legal orders, Indigenous laws and legal orders never vanished. With the bolstering of Indigenous rights on the international stage and the increased awareness of Indigenous issues throughout Canada, the Government of Canada has committed to reconciliation with Indigenous peoples on a nation-to-nation basis. To engage in a true nation-to-nation relationship, the Government of Canada must recognize Indigenous law as a legitimate source of law in Canada. This applies to the domestic implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.

This chapter undertakes the exercise of interpreting Dene stories to extract legal principles and apply them to access and benefit-sharing (ABS) so that Dene peoples and researchers may create ABS agreements consistent with Dene law. This approach to ABS may apply to other Indigenous peoples as they prepare for this new era of nation-to-nation relations and the creation of a domestic ABS regime. The stories outlined in this chapter indicate that three major principles of Dene law that apply to ABS are: (1) equality, (2) sharing and (3) reciprocity, focusing on its application as between humans and non-human life forces (genetic resources). It should be noted that this chapter is an exercise in legal interpretation from the perspective of non-Dene scholars. Our assertions have not been screened by Dene knowledge keepers or Dene elders. Our intention is to provide but one interpretation of Dene law and its possible application to ABS, which may assist Dene peoples and inspire others as they develop their own legal frameworks in response to ABS and other issues.

The first section of this chapter provides background information on the Dene and their homeland; Denendeh. The next section explains Indigenous laws and legal orders and how these may be interpreted by legal scholars to apply to ABS issues. This section warns against filtering Indigenous stories through the common law lens and over-intellectualizing the stories. The third section explains the laws that the Dene were given by ‘The Great Lawmaker,’ Yamoria, which they have subsequently published. The fourth section sets out Dene stories, selected from works of George Blondin, a Dene elder. Next, an interpretation of the selected stories outlines the legal principles of equality, sharing and reciprocity in Dene law. Finally, guidance is provided on the integration of these legal principles into ABS agreements so that Dene peoples may engage in ABS agreements in a Dene-lawful way.

Background and Conceptual Orientation

Indigenous Legal Traditions as Valid Sources of Law in Canada

Understanding Dene law as it applies to the beneficial use of non-human entities is a necessary and important exercise, which raises broader questions regarding the recognition and application of Indigenous legal traditions within Canada. These questions involve complex issues related to the scope of Indigenous governance and jurisdiction and the constitutional relationship between the laws of the Canadian state and Indigenous law (Nichols, Chapter 4).¹²

Issues Involved in Interpreting Indigenous Laws and Legal Orders

The authors remain concerned that unsophisticated attempts to recognize Indigenous legal traditions may result in poorly understood characterizations or descriptions of Dene law due to a lack of grounding in Dene culture. Aaron Mills has argued that it is important for those learning Indigenous law in law schools to have a grounding in the ‘lifeworlds’ of the people they are studying, so that they may appreciate the constitutional distinctiveness of Indigenous societies rooted in ways of living that value and recognize interdependence between human and non-human entities.¹⁹ Val Napoleon has described this cultural grounding as the ‘primer’ needed to appreciate the cultural place of Indigenous legal principles.²⁰ It is uncertain how much exposure to Indigenous lifeworlds, values and beliefs is required to ensure that legal analysis does not unduly appropriate and compromise Indigenous knowledge and ways of knowing, which would damage the very integrity of the learning project as a result.

Indeed, as Hannah Askew has noted, certain scholars such as Gordon Christie are not at all confident that scholars will not filter Indigenous teachings through common law eyes, over-intellectualizing Indigenous legal resources and distorting the message of Indigenous stories.²¹ The fear here is that stories interpreted into legal principles by non-Indigenous legal scholars and lawyers trained in the Canadian common law tradition may become so distorted by interpretation that community members no longer recognize them or find them useful.²²

The authors chose to undertake the exercise of interpreting Dene stories to discern legal principles which may guide ABS frameworks because of the persuasive reasoning and helpful guidance provided by Val Napoleon and Hadley Friedland in Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions.²³ There, Friedland and Napoleon argue that legal synthesis is important because ‘taking Indigenous legal research to this level is precisely what will enable us to move beyond external descriptive, historical or sociological accounts of Indigenous legal traditions.’²⁴

Following models created by Friedland and Napoleon, the authors identified common themes and patterns which emerged from Dene stories and synthesized relevant stories into categories to discern legal principles applicable to a focused area of law. This method is meant to ensure both reliability and validity.²⁵ The goal of this methodology is to synthesize concise legal principles capable of being applied to contemporary legal and sociological issues.

The exercise undertaken in this chapter builds on the important and impressive work by George Blondin.²⁶ The stories interpreted here were recorded and produced by Dene elder George Blondin and published for public knowledge. Blondin published books recording Dene stories because he and other Dene elders had a duty prescribed by Dene law to pass laws and stories onto future generations and they feared the stories would be lost otherwise.²⁷

The authors are aware that some Dene teachings/stories are not to be disclosed publicly because of their sacred content. We assumed that relying on published stories by a Dene elder who obtained permission from the storytellers that gifted the stories to him could and indeed should be used and relied on; as to do so would fulfill George Blondin’s wishes as supported by the many Dene communities, Band Chiefs and Council members from the communities he visited. However, we did not test our conclusions regarding the legal principles that were identified from the stories with any of the Dene communities discussed in George Blondin’s books. Thus, any errors of interpretation are ours alone.

We hope that this chapter may assist Indigenous communities in Canada to grapple with ABS preparedness, self-assessment and capacity building and capacity development (Oguamanam & Hunka, Chapter 3). Our methodology may offer a model for Indigenous communities to examine their own legal traditions, to see if engaging with extractive industries generally or genetic resource prospectors specifically is compatible with those laws and traditions.

The Dene Laws

An important figure in the Dene legal order is Yamoria, ‘The Great Lawmaker,’ a powerful medicine person who brought the Dene people their laws and taught them how to live a good life.²⁸ The Dene have published the list of laws handed to them by Yamoria to educate youth and provide a list of principles non-Dene people should understand as a precursor to interaction with Dene peoples, culture or law.

The first law, ‘share everything you have’ is the ‘umbrella law.’²⁹ Blondin’s explanation of this law, outlined in the book Medicine Power, directs Dene to share big game and fish, help elders get firewood and with other heavy work, help sick people to do their work, share in the sorrow of relatives when someone dies, help widows and their children with everything they need, look after orphaned kin, and help travellers who are far from their homeland.³⁰ This umbrella law presumably originated from the scarcity of bush resources and need to share for the good of the community:

Some principles prescribed by Dene law are accessible through stories, which have been passed through the generations in an oral tradition. Legal principles discerned from Dene stories and applicable to relationships with the natural world illustrate the interdependence between humans and non-human genetic life forces. Through this exercise, we focus on other related legal principles: (1) equality, (2) sharing and (3) reciprocity. These principles may be applied in contemporary contexts, perhaps with slight modification, to prescribe the characteristics of good relationships between Indigenous nations and peoples, governments, researchers and biotech industries to facilitate access to and use of traditional knowledge and non-human entities, including ‘genetic resources.’ These two legal principles guide Dene decision-making processes related to non-human genetic forces and may be employed to guide ABS arrangements.

Selected Stories

The Meeting between Humans and Animals

When the world was new, a conference took place between humans and animals where they determined how they would relate to each other. During this conference, Yamoria used his medicine powers to control everyone’s minds to arrive at a fair resolution. It was agreed that humans may use animals, birds, and fish for food, provided that humans killed only what they need to survive and that they treat the animals with great respect. This respect included using the whole animal, thinking well of the animals, and thanking the Creator for putting them on earth.³⁵

Illustration 1: The Meeting between Humans and Animals

© Kelly Duqette, 2017

Caribou Help

The leader of a herd of caribou spotted a man who was looking to hunt a couple of caribou from his herd. While a non-Dene person might expect the caribou leader to become infuriated, the caribou leader simply confronted the hunter and proceeded to give him medicine power to use when he is in need of serious help. He also told the hunter to proceed with his plan of killing the last two caribou from the herd. Ultimately, the hunter not only got exactly what he wanted (i.e. hunting two caribou) but he also received medicine power that he could use when he was in need.³⁹

Illustration 2: Caribou Medicine

© Kelly Duqette, 2017

Interpretation

Implications for Access to Genetic Resources/Knowledge and Benefit-Sharing Agreements

Many Indigenous communities are now part of a larger society that values the accumulation of wealth without limit. Many Indigenous peoples are active participants in capitalism and the larger economy of Canada. Many Dene have expressed a desire to foster economic activity in their region that does not undermine their rights to control Denendeh. If the Dene wish to grant access to their genetic resources for profit via ABS agreements, then Dene law impose obligations in terms of how those agreements are to be crafted and understood. Researchers, industry and other stakeholders must equip themselves to meaningfully engage with Indigenous legal traditions that govern how genetic gifts are to be harvested, used, and disposed of in a manner that demonstrates proper respect and ensures sustainability. The legal principles distilled from Dene stories in this chapter give a useful example of the kinds of principles that must be incorporated into the ABS agreements such that they are consistent with Dene law.

An important preliminary consideration is whether the principles of equality between humans and non-human genetic forces and the obligation to engage in reciprocal relationships is a priori inconsistent with the characteristic of ABS. It is the authors’ understanding that the right to access the gifts of animals for healing purposes is not at all inconsistent with Dene laws. Indeed, based on the original treaty between animals and humans, described through the story, The Meeting between Humans and Animals, (and related stories) animals have an obligation to share their gifts with humans. It is unclear, based on the Dene stories available to the authors, whether this reciprocal relationship extends to plants. However, the importance of respect for the Earth (which includes plants) and the land more generally is consistent with the idea of interdependence and equality being extended beyond animals alone.

ABS agreements provide an opportunity to mandate compliance with Dene law through contractual obligations. Where the Dene nation or individual communities have chosen to grant access to their genetic resources and associated traditional knowledge, they may write into ABS agreement certain provisions which bind researchers to Dene law. For instance, the Dene could negotiate non-monetary benefits on behalf of the non-human genetic resources affected by the ABS agreement. The benefit-sharing provisions in an ABS agreement are intended as a means of equitably sharing the benefits that flow from commercial use of genetic forces from Denendeh. Dene law principles indicate that non-human genetic forces are equal to humans and that as such, relationships between humans and non-human genetic forces must be reciprocal in nature. Therefore, it follows that an ABS agreement would be in violation of Dene law if humans profited from the exploitation of non-human genetic forces without any sort of reciprocal exchange or sharing of benefits. This is consistent with the undergirding rationale for ABS especially as it relates ultimately to the conservation of biological diversity.

To ensure that researchers engage in a (Dene) lawful relationship with the non-human entities of Denendeh, the Dene could write into the ABS agreement non-monetary benefits such as habitat protection or other conservation initiatives. It must be understood that to rely on such plants and animals within a Dene cultural perspective means that individuals or corporations are obligated to respect the original treaty relationship between Dene and animals and to affirm that animals and other aspects of the earth have agency. If a Dene community enters into an agreement with a researcher or biotech firm to share medicinal knowledge about plants or animals, then the researcher or biotech firm will similarly be bound by Dene law. Thus, a firm will be responsible for complying with two agreements: one with the Dene community and one with the Earth (i.e. the animals, plants and natural elements). Moreover, because the life forces of the Earth and humans made a sacred pact long ago, it arguably would not be possible for the Dene to waive such obligations for a biotech firm without breaching their own constitution.

For the purposes of ABS agreements, it is important to note that the reciprocal relationship between humans and non-human entities, prescribed by Dene law, does not extend to exploitation. Conservation is an integral part of the relationship between the Dene and non-human genetic forces. The stories affirm that there is a duty for humans to only use animals or plants only according to need. It is unlikely that this duty would be respected by corporations looking to commodify ‘genetic resources’ for the purposes of simply generating profit. As such, ABS agreements adopted by the Dene could put limits on the amount of genetic material flowing from the region – it could be within the scope of the agreement to mandate a certain amount of genetic material remain within Deneneh.

For example, the Dene may agree to provide researchers with no more than a certain percentage of an animal population so that the population is not degraded. Similarly, the ABS agreement may only allow removal of plant samples at certain times of the year, when populations are high, to limit alteration of plant growth cycles. In addition, any agreements with researchers regarding the use of genetic forces must ensure monitoring and authoritative oversight by the Dene communities involved. As the stewards of their lands, this is not an obligation that the Dene can easily contract out of without breaching their own sacred laws. There are also distinct obligations in Dene law for disposing of animals. If parts of animals and plants are not needed, there are obligations as to how to dispose of such parts in a manner consistent with the Dene’s sacred obligations to all living things. These obligations may be included in provisions intended to address ‘Rights in and Dealings with Samples and Products.’⁵³

Conclusion

The Dene are heavily influenced by the natural environment in their decision-making processes. Notions of equality, sharing and reciprocity are key to understanding how Dene communities functioned in some of Blondin’s stories. Medicine people and leaders always take into consideration their surrounding environment, which they value and view as interdependent and integral parts of their own communities.

A goal of this chapter is to start a broader conversation about the principles that can be distilled from Indigenous legal traditions, and how those principles might be applied to areas of law that engage Indigenous rights. Although we do not claim that our interpretation of any of these principles is correct or the only interpretation possible, we believe it is still important to include them in this volume and make them accessible to members of the Dene nation and non-Dene individuals. We believe that Blondin published these stories to preserve the importance of Dene understandings of legal principles and to remind people of the prominence of medicine power within the Dene community.

Recognizing Indigenous legal traditions has important implications for the biotechnology industry and Canada’s national conversation about ABS over plant and animal genetic resources and associated Indigenous traditional knowledge. The biotechnology industry and research communities must be cognizant of the differing legal and cultural orders their work may engage (Oguamanam & Koziol, Chapter 7). If operating within Dene territory or with regard to Dene knowledge, biotechnology firms and researchers must pay due regard to the principles of Dene law, especially if ABS agreements are negotiated in order to access Dene resources. This also holds true more broadly; if ABS agreements are to be equitable in any meaningful sense, they must engage with, and be shaped by, the laws, traditions, and customs of the people whom they are meant to protect and benefit.

Here, our task was simply to demonstrate that this is not an impossible task, and that distinct, well-defined, and discernable legal principles exist not only in Dene society but in all Indigenous societies. These principles are accessible and can be applied, with occasional modification, in contemporary contexts, including the salient discussion of access to ‘life elements,’ including ‘genetic resources’ and associated Indigenous traditional knowledge.

Introduction

The intersection of biotechnology and access and benefit-sharing (ABS) has wide ramifications for fairness, equity, justice, reconciliation, ethics and power relations with regard to Indigenous peoples in Canada. This chapter explores legal measures and trends on ABS both internationally and nationally and their insights toward a Canadian ABS regime. First, the chapter briefly outlines relevant international obligations including the Convention on Biological Diversity (CBD), and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization (NP), alongside a highlight of related instruments. Second, it surveys legal measures from comparatively experienced jurisdictions on ABS including Brazil, Namibia and Australia to identify points of convergence and divergence in relation to the Canadian context. Finally, the chapter makes recommendations on how to integrate ABS into the Canadian legal landscape in a way that is sensitive to Indigenous peoples.

Obligations under International Instruments

The global ABS framework is made up of interconnected mutually supportive obligations established by the CBD. Those obligations were further refined through the NP. Other relevant ABS-related instruments include the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the work of the World Intellectual Property Organization Intergovernmental Committee (WIPO-IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore on the Draft Articles on TK and related developments on the interface of intellectual property rights (IPRs) and GRs.

National Legal Measures

The following brief survey of ABS frameworks aims to illuminate available approaches. These jurisdictions were specifically selected based on their domestic drivers and experiences. Both Brazil and Australia are federal states which have significant Indigenous populations and a colonial history. Both view themselves as users and providers of genetic resources. Namibia provides an example of decentralized governance options based on empowerment of local communities. These experiences can inform Canada’s options.

Recommendations for Indigenous-Sensitive ABS in Canada

Experiences from jurisdictions with ABS regimes can assist in establishing a robust ABS framework in Canada. The recommendations offered are drawn from legal approaches adopted in the profiled jurisdictions and contextualized to the Canadian legal landscape to illustrate practical modalities and possible ways forward. These recommendations emphasize the importance of respectful engagement with Indigenous peoples, and are meant to ensure the protection, preservation, and sustainable use of GRs and associated TK in Canada.

Conclusion

In its highly limited practice, the Canadian approach to ABS is lagging behind international norms, creating an environment of legal uncertainty, and providing inadequate protections for the rights of Indigenous peoples of Canada (Oguamanam & Koziol, Chapter 7; Oguamanam & Phillips, Reference 177Oguamanam, Phillips and Nichols2015). Jurisdictions such as Brazil, Namibia and Australia provide useful approaches to inform ABS practices in Canada. Establishment of an interim body to evaluate access applications, review access terms, and prevent misappropriation is a worthy prerequisite. Harmonizing the ABS framework across Canada while balancing jurisdictional powers – Federal, Provincial, Territorial and Indigenous – will be a time consuming but important long-term initiative. Under this emerging framework, differentiated permit types and ongoing review to monitor changes in intent from research to commercialization are important.

Utilization of a specialized benefit-sharing fund provides a flexible mechanism to support conservation and sustainable use by Indigenous nations broadly and dissemination of benefit-sharing for transboundary or widely held TK. Finally, recognition and protection of rights of ILCs as they relate to TK, including refinement of patent disclosure standards, and development of Indigenous controlled TK databases, is vital to prevent erosion or misappropriation of GRs and associated TK. Active progress should be made on acceding to the NP in Canada to bring the domestic approach in line with international norms, including procedural mechanisms for the establishment of PIC and MAT, integration of a formal disclosure of origin requirement in patent applications relating to GRs or TK, and a supplemental due diligence requirement on users. Integration of ABS in Canada provides an area of opportunity to overcome previous missteps in Crown-Indigenous relations, establish a framework which practically balances innovation with equity, and provides functional modalities for the sustainable development of Indigenous peoples of Canada (Oguamanam, Chapter 14). Urgent action is needed, and the experiences distilled from other jurisdictions provide useful insights into the modalities for phased implementation of ABS in Canada prior to its formal accession to the NP.