Indigenous Knowledge Forum 2019

Abstracts for Keynote Speakers

The Geopolitics of Capacity Building and Capacity Development: A South-North Community-to-Community Approach to ABS and Traditional Knowledge

Professor Chidi Oguamanam, Faculty of Law, University of Ottawa

This keynote draws inspiration from the partnership between the Maritime Aboriginal Peoples Council of Canada and ABS Canada in a three-year research partnership that explored Aboriginal sensitive Access and Benefit Sharing for Canada. It postulates that the ABS regime pursuant to Nagoya Protocol poses a welcome challenge to develop and improve on Indigenous governance frameworks on ABS as a specialist subject matter. However, in order to fully respond to Nagoya and other emerging regimes that place a demand on various aspects of Indigenous self-determination and self-governance, there is need to further interrogate the global geo-politics of capacity building and capacity development. The idea is to probe the conventional North to South traffic of capacity building and capacity development which has served the stereotypical matrix of top-down development in which Indigenous People are cast as docile recipients of western development paradigms. Not only does that approach undercut the decolonization project, it undermines the ability of world’s Indigenous Peoples and their local community counterparts elsewhere to forge constructive partnerships and share experiences on fundamental and emerging development challenges. As Indigenous Peoples respond to Nagoya-inspired ABS regime, we have an opportune moment to critically revisit the twin subject of capacity building and capacity development in purposive direction toward culturally sensitive development pathways for decolonization. I call attention to ongoing the community-to-community outreach on ABS and TK and its potential.

Mapping Sonic Authority: Questions of Ontology and Sovereignty in the Indigenous IP Project

Associate Professor Trevor Reed, Sandra Day O’Connor College of Law, Arizona State University (USA)

How does one locate authority in communities where no centralized authority exists for traditional knowledge? In this paper, I discuss initial efforts of the Indigenous IP Project to map the ownership and circulation of indigenous song-knowledge in Hopi and other Indigenous communities in the present-day Southwestern United States. While some communities conceptualize their sovereignty over intangible cultural resources as totalizing and absolute, others conceptualize that authority as relational or network driven, or even hybrids of both. Based on over eight years of community-partnered research involving ceremonial song repatriation, I propose that efforts to locate Indigenous authorities that own or circulate knowledge materials might begin by focusing more on the ontological nature of the material in question and the relations or obligations encompassed by it, rather than seeking out individuals, processes, or protocols that hold or generate authority over those materials. I suggest that one way to identify and understand this kind of networked authority is to carry out the return of knowledge materials and other resources back into Indigenous networks through repatriation.

Report on the Achievements to Date on Traditional Knowledge and the Nagoya Protocol

 

John Scott, Secretariat of the UN Convention on Biological Diversity, Montreal 

Mr Scott presented an update on current developments and achievements in regard to the CBD, traditional knowledge, and the Nagoya Protocol.

 

See here for presentation slides.

 

Abstracts for Other Speakers

Intellectual Property Commercialisation by New Zealand Universities and Protection of Mātauranga Māori

Dr Lida Ayoubi, Auckland University of Technology (AUT), Law School

Universities account for around 28% of research and development (R&D) expenditure in New Zealand (NZ). Commercialisation of that R&D generates more than $500 million annually amounting to about 15% of total university income. Such innovation often results in an output that attracts intellectual property (IP) protection as part of the commercialisation process. Each university has an IP policy that addresses the different aspects of commercialisation such as ownership, profit sharing, licensing and so on.

 

Some of the research and innovation that academics and students engage with in NZ universities may have its origins in mātauranga Māori (Māori traditional knowledge). It is now commonly known that the traditional knowledge of indigenous peoples is ineffectively protected across the globe. Mātauranga Māori is no exception. One of the ways in which mātauranga Māori is often misappropriated is through protection of intellectual property rights. The Western IP system creates and grants private property rights to intellectual creations of individuals that meet the criteria established by the law. The mismatch between the requirements of IP law (such as novelty, individual authorship and ownership, limited term of protection) and characteristics of mātauranga Māori leaves Māori knowledge open to misappropriation either directly or in relation to innovation derived from such knowledge.

 

This paper explores the treatment of mātauranga Māori in the process of commercialising intellectual property at New Zealand universities. Obligations of universities that give rise to the need for consideration of Māori self-determination and involvement of a competent authority are discussed. Accordingly, the paper analyses the different competent authorities, or lack thereof, at eight New Zealand universities and their approaches to safeguarding the rights and interests of Māori in their mātauranga in the IP commercialisation process.

The Seven Peace Keepers: Listening, Living, Fighting, and Healing through D’harawal Storytelling

Associate Professor Gawaian Bodkin-Andrews, Shannon Foster, Centre for the Advancement of Indigenous Knowledges, University of Technology Sydney; Aunty Frances Bodkin, Uncle Gavin Andrews, Uncle John Foster, D’harawal Elders; and Brownwyn Carlson, Department of Indigenous Studies, Macquarie University

 

Worldwide, Indigenous Storytelling and Storywork is becoming increasingly recognised as an effective tool for research, teaching, and critical inquiry (Archibald, 2009; Martin, 2008; Todd, 2018). An expanding base of Indigenous-led research has emerged to reveal a diversity of storytelling practices that have been recognised as effective tools for not only resisting dominant and oppressive colonial narratives, but also assisting in the transmission of traditional and contemporary Indigenous Knowledges and values that have been linked to stronger educational, social, health, and mental health outcomes (Lester-Smith, 2013; Linklater, 2014; Wexler, White, & Trainor, 2015). Such research effectively highlights the power of Indigenous Storytelling to not only teach, but to heal individuals and communities. Sadly, within the Australian context, many Aboriginal and Torres Strait Islander Ancestral (Dreaming) Stories have been appropriated, minimised, and dismissed as mere child-like fables and myths, as non-Indigenous ‘authors’ have knowingly and unknowingly erased the multiple layers of meaning deeply embedded within them (Bodkin, 2013). This presentation will attempt to move beyond the tainted lens of colonial hegemony and its methods of ‘evidence creation’, and instead engage with the D’harawal Ancestral Story of the seven Yandel’mawa (peacekeepers) and their leader, the Yandel’bana (peacemaker). Through exploring the layers of meaning embedded within this story, links will be made with contemporary Indigenous research that has meaningfully engaged with Indigenous protocols, ethics, guidelines, and Indigenous ways of knowing, being, and doing. By weaving lessons from our D’harawal Ancestral Stories with contemporary narratives of Indigenous survival, resistance, and protection, a series of principles will be revealed to contribute to a more meaningful engagement with Indigenous Storytelling

Aboriginal Peoples’ Right to Self-Governance under International Human Rights Law: Justifying the Protection of Aboriginal Knowledge in Canada

 

Andrea Buitrago-Carranza, McGill University, Faculty of Law

 

In Canada Aboriginal rights are protected and recognized under section 35(1) of the Constitution Act, 1982. These rights are limited in scope, community-specific, dependent upon the Van der Peet “distinctive culture” test adopted in 1996 by the Supreme Court of Canada (SCC), and potentially extinguishable by clauses in modern treaties such as 2.1 of the James Bay and Norther Quebec Agreement. Such framework does not guarantee the protection of Aboriginal knowledge under the Constitution of Canada.

In contrast, international human rights law provides a broader scope for several Aboriginal rights, including the right to self-governance which can include the protection of Aboriginal knowledge. Human rights are inalienable, derived from human dignity, and incapable of extinguishment. However, in this context, several scholars have argued that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be used only as a tool in statutory and constitutional interpretation. This view derives from three main limitations: firstly, Canada’s dual approach to international law and the doctrine of unimplemented treaties, as explained in Baker by the SCC; secondly, the soft-law nature of

UNDRIP; and thirdly, the existing legal framework under Canadian common law. As a result, no consideration has been given to the existence of an independent right to self-government based exclusively on the rights of Aboriginal peoples under international legal instruments.

This paper argues that it is possible to claim a right to the protection of Aboriginal knowledge in Canada, independent from sec. 35(1), which derives from the right to self-governance protected under international human rights law. In this regard, this paper explores the justification of an independent right to self-government under UNDRIP, in connection with three main international instruments that protect the right to self-determination of peoples, and which have been ratified by Canada. These are the 1945 Charter of the United Nations and both International Covenants of 1966.

University-Community Research Collaborations: Achievements and Challenges

Associate Professor Joanne Jamie, Indigenous Bioresources Research Group, Faculty of Science and Engineering, Macquarie University, Sydney, NSW; Deb Breckenridge, Cultural Liaison Officer, Yaegl Community, Maclean, NSW; Associate Professor Paul Prenzler, School of Agricultural and Wine Sciences, Charles Sturt University, Wagga Wagga, NSW; Associate Professor Subramanyam Vemulpad, Indigenous Bioresources Research Group, Faculty of Science and Engineering, Macquarie University, Sydney, NSW; and Yaegl Aboriginal Elders

 

Recognition of the significance of Australian Aboriginal and Torres Strait Islander knowledge and respect for the custodians of this knowledge is growing within Australia, especially due to the recent positive practices of incorporating examples of Indigenous knowledge and cultural practices into school curricula. Universities across Australia are also beginning to respectfully incorporate Indigenous knowledge throughout their study programs. Indeed, at Macquarie University, as part of the Indigenous Connected Curriculum Framework, by 2020 all programs of study will have embedded Indigenous knowledge and perspectives. This is an exciting time in seeing the rich cultural knowledge of Australian Aboriginal and Torres Strait Islander people embraced and has real potential for long-term benefits for Indigenous and non-Indigenous people. The Indigenous Bioresources Research Group (IBRG) of Macquarie University have been working since the early 2000’s with Yaegl people of northern New South Wales, Australia, on documentation and scientific investigation of bush medicines. They have developed strong respectful relationships with the Elders and other members of their community, and together, have created capability strengthening and reciprocal benefit sharing avenues that have been immensely rewarding for everyone involved. It is, however, becoming increasingly challenging to initiate or continue research with Australian Aboriginal and Torres Strait Islander people, due to somewhat inflexible processes. This is disconcerting given that continuation of embedding Indigenous knowledge and perspectives into our education systems would benefit from strong Indigenous and non-Indigenous research collaborations. This presentation will provide some background on the achievements of the IBRG and the Yaegl community collaboration, the IBRG’s recent challenges, and the potential wider implications of these challenges. It is hoped that discussions arising from this presentation will offer innovative solutions.

 

Can Effective Indigenous Self-Determination be Achieved within the Nation-State?

Dr Michael Davis, Research Fellow, Garuwanga Project, University of Technology Sydney

The Nagoya Protocol (Art 14) calls for State Parties to the CBD to provide a ‘national focal point’ and ‘national competent authority’ and also refers to ‘Relevant competent authorities of indigenous and local communities’ (14(3)(a). The role of these bodies is to control, regulate, and make decisions in regard to what may be termed ‘biocultural rights’ – rights over natural and genetic resources and knowledge associated with these. In seeking to identify, and/or design appropriate models for a ‘competent authority’, in this paper I examine how Indigenous peoples’ governance of natural resources and traditional knowledge might be achieved in ways that enable the achievement of the right to self-determination. If we consider the idea of a ‘national competent authority’ as one that is formed from, by, or within the national political body, then by implication, this is already in tension with the concept of Indigenous self-determination, if this carries with it the right to exercise rights to manage, control and make decisions in regard to traditional knowledge and natural resources. The question that arises here is: can effective Indigenous self-determination be achieved within the nation-state? The former Aboriginal and Torres Strait Islander Commission (ATSIC), while far from ideal did provide to some extent for the rights of Indigenous peoples to self-determination. In this paper I draw on a decolonising, or anti-colonial paradigm, to explore some of the key questions around Indigenous governance, authority, decision-making, and customary laws and practices in regard to decisions concerning biocultural rights in knowledge and resources.

 

See here for presentation slides.

The Agency of Arnhem Land Bark Painting in the Self Determination of Indigenous Australian Culture: Buku-Larrnggay Mulka Incorporated -Yirrkala Art Centre – Case Study of a Community Based, Indigenous-Controlled Competent Authority

Dr Marie Geissler, University of Wollongong

The community art centre of Buku-Larrnggay Mulka in the Yirrkala region of Eastern Arnhem Land, is an art centre that has operated as a Competent Authority since May 2008 when Buku-Larrnggay Mulka Incorporated was registered within the legislative framework of the Northern Territory of Australia.1 As a Competent Authority, it governs the Aboriginal-owned and operated community-based art centre for the Yolŋu people of the Yirrkala region. Privileging the autonomy of the Yolŋu, two relatively autonomous systems, that of the European and that of the Indigenous, meet and interact to create a hybrid or transcultural form of issues management, in ways that are permeated with Yolŋu principles of traditional governance.

 

In the spirit of self-determination, which has informed many of the community’s initiatives, and which underpins the Constitution of the Buku-Larrngay Mulka Art Centre today, the institution has been highly successful in furthering the economic independence of the Yolngu community in achieving significant financial returns to the community and the artists, empowering the culture and promoting Yolngu art in Australia and overseas in many different ways.

 

Importantly, through the implementation of the Indigenous-developed operational protocols of Buku-Larrngay Mulka Art Centre, the Centre has been exemplary in ensuring the cultural control and security over the use of Yolngu sacred designs, and maintaining their political and intellectual sovereignty over their land and sea-based culture.

 

To contextualise the use of the Competent Authority in remote Indigenous communities, specifically that of Buku-Larrnggay Mulka, this paper will investigate several interconnected currents, the role of Arnhem Land bark painting in paving the way for Indigenous self-determination, and the early history of European-Indigenous interactions within regional remote economies that promoted self-determination.

As a way of exploring these parameters, and to get insights into the operations of the Buku-Larrngay Mulka Centre today, publicly available documents on the art centre including the Constitution, Annual Reports 2009-2018, and website material will be evaluated.

See here for presentation slides.

Indigenous Self-Determination, Biopiracy, and Competent National Authorities

Dr Oluwatobiloba Moody, Post-Doctoral Fellow, Center for International Governance Innovation (CIGI), Canada

With the adoption of the Nagoya Protocol in 2010, the international community succeeded in putting in place the long-sought framework for a binding international access and benefit sharing (ABS) regime – one which would provide further clarity and legal certainty around scientific uses of genetic resources (GRs) and associated traditional knowledge (TK). Though this regime defined an explicit objective of ABS, one of its key implicit objectives – from the perspective of its demandeurs – was to put an end to the problem of biopiracy. By emphasizing key UNDRIP-compliant principles of prior informed consent (PIC) and mutually agreed terms (MAT) for benefit sharing, it is expected that Indigenous peoples will be further empowered in exercising control over access and third-party uses of their resources and knowledge systems.

 

Biopiracy is generally used to reference the misappropriation and/or misuse of genetic resources and/or associated traditional knowledge. Most cases of biopiracy are aggravated due to lack of benefits being shared (non-compensation) and the acquisition of intellectual property rights over the processes and products arising from the scientific inquiry into genetic resources and associated TK.

 

Competent National Authorities (CNAs) are expected to play key roles of granting access, issuing written evidence that access requirements have been met, and advising on applicable procedures and requirements for prior informed consent (PIC) and mutually agreed terms (MATs) (Article 13.2). Indeed, these roles of CNAs are critical for realizing Indigenous interests over resources and associated knowledge, and ultimately also for addressing the problem of biopiracy.

 

With a specific focus on the principle of Indigenous self-determination, this paper will examine the functional role of CNA’s towards addressing the problem of biopiracy. To this end, the paper will discuss the problem of biopiracy within the specific context of Indigenous peoples; clarify the concept of Indigenous self-determination with respect to access to genetic resources and associated traditional knowledge; and, based on a comparative review of some relevant jurisdictions, advance specific suggestions and recommendations for Indigenous self-determination in addressing the problem of biopiracy through the activities of CNA’s.

Obtaining Recognition of Indigenous Control of ITK Directly or through Enabling Legislation

Professor Bradford W. Morse, Dean of Law, Thompson Rivers University Faculty of Law, Canada & Professor of Law, Te Piringa – Faculty of Law, University of Waikato, NZ

 

UNDRIP expressly recognizes indigenous rights to maintain, control, protect, and develop ITK. The challenge is obtaining state partnership in implementing these principles. My paper will explore 2 different Canadian developments that may enhance fulfilling these principles.

First is establishing OCAP® (Ownership, Control, Access and Possession) standards by the First Nations Information Governance Centre (FNIGC) mandated to implement Indigenous control over how data should be collected and used. More recently, the First Nations Data Centre was established as the information technology arm.

 

Second, has been on the federal legislative front. Bill C-262 seeks to ensure that Canadian laws reflect UNDRIP. Having passed the House of Commons, it is currently in the Senate. The Bill states that UNDRIP is “affirmed as a universal international human rights instrument with application in Canadian law” and requires the federal government to take action “to ensure that the laws of Canada are consistent with” UNDRIP and create a “national action plan to achieve the objectives of” UNDRIP. Annual reports to Parliament on actions are required.

 

The federal government has been reflecting some of this thinking through recent legislation. Bill C-69 overhauls environmental impact assessments and would prohibit disclosure of ITK without Indigenous consent. Bill C-91seeks to “reclaim, revitalize, maintain and strengthen” Indigenous languages by creating the Office of the Commissioner of Indigenous Languages to provide support upon request, conduct research, and “create permanent records of the language, including audio and video recordings and written material”.

 

It is hoped that the description of these initiatives and the analysis of their potential for serving as vehicles to ensure the preservation and revitalization of ITK may also serve as viable means to create safe mechanisms through which specific Indigenous peoples can control their ITK as they believe best meets their needs now and in the future.

See here for presentation slides.

Museums, Ethics, and Indigenous Culture: Standards-Setting in a Longer Time Perspective than Protective Legal Measures Alone

Bernice L Murphy, Editor, Museums Australia Magazine, Australia

For some decades, there have been efforts focused on legal protection to secure Indigenous cultural rights of intellectual authority and self-determination in respect of cultural creativity and collections held in museums, and their appropriate interpretation and presentation to a broad public. These measures have been important and achieved great improvements on behalf of Indigenous people. However, there are significant avenues of affirmative action also available through ethics codes and collectively shared professional standards upheld by museums, and these avenues merit attention alongside pursuit of legally-based measures for rights-protection. An important reason for understanding ethical principles binding museums to the search for principled and just outcomes for all peoples represented in collections is that ethics codes reach much further than the law, and they do not cease at the point of a legal judgment in court. This paper will provide an international overview of these differences, to help illuminate the current context from a global perspective. However, the paper will also turn to the Australian situation from the author’s experience direct experience of museums and state galleries: to analyse crucial standards-setting protocols and other advances that have been achieved since 1993, in respect of the rights of Indigenous people in control of their culture and expression – and some options still open for continuing advancement.

 

The Development of Access and Benefit Sharing Mechanisms in African Countries for the Protection of Traditional Knowledge

Margaret Ninsin, University of Ghana

This paper discusses how a competent authority can be formed to protect Traditional Knowledge through Access and Benefit mechanisms. Several African countries produce medicines from their traditional knowledge. These include diabetic medicine from Kenya, Antibiotics from Gambia, Antifungal from Namibia. Four Multipurpose medicinal plants from Ethiopia and its Neighbouring countries; Hoodia, the Appetite suppressant from Namibia, South Africa, Angola and Botswana. Also from Morocco the Argan oil which is extracted from a tree and used as cosmetic base in several western countries.

 

Yet over the years African countries have had their traditional knowledge taken from them without any equitable compensation accruing to owners of such knowledge. Their concerns have especially been about the inequitable international Intellectual Property regime that does not recognise traditional knowledge, which is largely community based.

 

In this paper I draw attention to the fact that very few African countries have taken steps to implement Access and Benefit Sharing provisions in Article 15 and 8(j) of the CBD convention. As a result they are unable to adequately protect their knowledge. Local communities usually find themselves in situations where they are forced to negotiate or they are marginalized. The avoidance of this situation of marginalization is what underpins Access and benefit sharing schemes. Before any outsider would be allowed access to the natural resources of the communities, compliance with the following principles should be assured. To achieve the above a competent authority should be established in each African country empowered to exercise general oversight of the Access and Benefit Sharing of the proceeds of Traditional knowledge. This national authority should comprise representatives of traditional rulers. Where councils of traditional rulers and community leaders already exist, their representatives should constitute this body. These are community leaders with deep understanding of the uses and benefits of Traditional Knowledge. They should be assisted by bureaucrats/technocrats who are knowledgeable about this subject and relevant laws. Under this national body there should be a focal person in networks of local communities where responsible officers can guide the communities to develop and preserve ‘indigenous customary law, community protocol and proceedings’ and also ‘community protocols in relation to access to traditional knowledge associated with genetic resources and the fair and equitable sharing of benefits arising out of the utilization of such knowledge’ (Art 12, Sect 3(a)). This will enable local communities to own the process and control access to their resources as well as share in the benefit accruing from the exploitation of their communal knowledge.

 

Protection of Intangible Cultural Heritage in Sicily

Professor Giacomo Pace Gravina, Department of Jurisprudence, University of Messina (Italy)

 

Sicily is a region of Italy, an island in the middle of the Mediterranean Sea. This strategic position has favored a mixture of peoples − Greeks, Romans, Carthaginians, Byzantines, Arabs, Normans, Germans, French, Spaniards ... − and therefore of different traditions, stratified over the centuries, which have created, in addition to a huge monumental heritage, even an important intangible cultural heritage.

To implement the Convention for Safeguarding of the Intangible Cultural Heritage, approved by UNESCO on 17 October 2003, the Government of the Sicily Region established in 2005 the Register of Intangible Heritage and the Regional Program of Intangible Heritage, renewed in 2014.

Thanks to this Registry, Sicily has put in place the essential activities for the identification and registration of its cultural heritage, contributing to their protection, as well as the appropriate promotion and use, thanks to the Regional Program of Intangible Heritage. 177 elements have been registered since the establishment of the Register.

The new Register of Intangible Heritage of the Sicilian Region consists of the following books: the Book of Celebrations, Feasts and Ritual Practices; the Book of Trades, Knowledge and Techniques; the Book of Dialects and Jargons; the Book of Expressive Practices and Oral Repertoires; the Book of Living Human Treasures; the Book of Symbolic Spaces.

Thus it was possible to preserve many manifestations of Sicilian culture, which risked disappearing due to globalization, the abandonment of the internal areas of the island, the depopulation of small urban centers.

This commitment, understood as a work in progress, continues through processes of interaction with local communities, which can propose further inscriptions of other elements of the intangible heritage, thus extending the range of action of the protection of memory.

See here for presentation slides.

Māori Knowledge under the Microscope: Appropriation and Patenting of Mātauranga Māori and Related Resources

 

Associate Professor Daniel F. Robinson, Environment and Society Group, Faculty of Arts and Social Sciences, University of New South Wales

 

Since the early 1990s there has been considerable global discussion and debate surrounding biodiscovery activities and the utilisation of both genetic resources (including biochemical derivatives) and associated traditional/Indigenous knowledge (TK/IK). Concerns about misappropriations and biopiracy have often been raised; however it has been difficult to quantify the scale of this problem beyond some common examples and anecdotes. This paper contributes to emerging research in this area (e.g. see Oldham et al. 2013; and Robinson and Raven 2017) and seeks to quantify patent utilisation of specific GRs where there is documented TK. A patent landscaping approach was undertaken with a focus on plants with associated mātaraunga Māori (Māori knowledge) from Aotearoa New Zealand. We explain our methodology and highlight 77 patent families of interest identified through our search. Although the findings are not definitive about misappropriation without additional analysis of the patents’ specifications and claims, and sources of mātauranga Māori, the data we outline may be useful for drawing out cases of misappropriation and biopiracy. These findings might also be useful for considering the potential implications of these for Māori claims under the Waitangi Tribunal Wai 262, potential access and benefit-sharing (ABS) systems, and intellectual property (IP) regulations or reforms, which could include a Māori cultural competent authority.

See here for presentation slides.

Forming a Competent Authority to Protect Intangible Cultural Heritage

Dr Ekapong Sarnnoi, School of Law, Sripatum Univerisity; and Dr Chongnang Wiputhanupong, School of Law, Sripatum University

 

This presentation aims to study legal measures in promoting and preserving Thailand's cultural heritage as part of the Traditional Cultural Expression in order to obtain effective guidelines for promoting and preserving cultural heritage.

 

The study found that social change and acceptance of modern culture from abroad were a serious threat. It affects the promotion and preservation of cultural heritage and the Traditional Cultural Expression. In addition, it could also bring loss and destruction to the cultural heritage.

 

Regarding the issue of self-determination, the study found that the people of new generation in Thailand are playing an important role in protection of the cultural heritage such as such as folk crafts, folk music, and folk songs in their living area. Some legal measures that contribute to the promotion and preservation of cultural heritage may be required, therefore, so that these people will join together to preserve the cultural heritage to continue with the Thai society.

 

In the end, the authors suggest that there should be a legal measure to promote knowledge of the community on the importance of cultural heritage. The measures could raise awareness, especially for children and youth. The solution could also come in the form of museums of cultural heritage which is an important channel for promoting and preserving the cultural heritage of Thailand.

Keywords: Support; treatment; Safeguarding Intangible Cultural heritage

 

Tax as a Tool for Self-Determination: The Native American Case Study

Professor Nancy E. Shurtz, Bernard A. Kliks Chair, School of Law, University of Oregon, Eugene, Oregon 97403

The UN’s goal of self-determination for indigenous peoples can only be accomplished with organizational structures that recognize their group sovereignty. The United States has gradually evolved its official policies towards its Native American constituents from patriarchal approaches in place since the 19th century towards those of a nation-to-nation relationship. An active manifestation of this paradigm shift is the taxation treatment of Native American tribes. For taxation purposes, they are treated as both sovereign governments and business entities, facilitating dramatic increases in economic vitality through consequent encouragement of internal (tribal) economic development. Tribes escape taxation at the entity level when they operate commercial enterprises such as gaming facilities, similar to states that run liquor stores, lotteries and convention centers. Individual tribal members are also not taxed from income attached to recognized fishing rights or from activities directly tied to tribal lands allotted through trusts. Additional policy vehicles can contribute to these trends and offer model options on the international stage.

My paper compares primary components in the American system, including tribal status, sub-governmental entities, tax exempt organizations, trusts (including business trusts) and various private business forms (LLCs, S-corporations, C-corporations, etc.) and hybrid entities (B companies, for instance). They will be evaluated against key criteria: (1) the deductibility of contributions to the entity, (2) income taxation of the entity from economic activities, (3) the taxation of constituent members of the entity, (4) the deductibility of taxes paid to the entity, (5) the treatment of health plans and fringe benefits provided by the entity, and (6) the tax consequences of the accumulation of earnings, partnerships with outside interests, reorganization structures, and termination. Important internal organization issues will also be examined that can have significant impact on the taxability and economic viability of tribal and individual economic activity.

 

See here for presentation slides.

Garuwanga: Forming a Competent Authority to Protect Indigenous Knowledge

Professor Natalie Stoianoff, Director, Intellectual Property Program, Faculty of Law, University of Technology Sydney; Professor Fiona Martin, School of Taxation and Business Law, University of New South Wales; Professor Andrew Mowbray, Faculty of Law, University of Technology Sydney

This paper will report on the outcomes of the ARC Linkage funded project, Garuwanga: Forming a Competent Authority to Protect Indigenous Knowledge (the Garuwanga Project). The Garuwanga Project is based on the Nagoya Protocol, which came into force on 12 October 2014, and has already been ratified by 113 UN member states and the European Union. Implementation of the Protocol requires the establishment of national focal points and competent national authorities (which may be one in the same). Such authorities, if created as non-government organisations and/or if governed by representatives of the communities they are intended to protect, could assist Indigenous communities to achieve self-determination in accordance with the United Nations Declaration on the Rights of Indigenous Peoples.

 

This paper will outline the forms of competent authorities already established by other nations to protect Indigenous knowledge and report on the legal and governance structures already utilised by Indigenous communities in Australia to protect their knowledge and culture. A key feature of this project is the Indigenous governance principles developed to evaluate Australian-based organisations that could provide potential models for such a competent authority. With the assistance of these principles and the outcomes of the Garuwanga Project 'on country' consultations, the project has proposed a tiered approach for competent authorities to operate in Australia starting with the local or regional level and being supported by a national level reporting body.

See here for presentation slides.

 

Competent Authorities for the Protection of Traditional Knowledge: Lessons from India and Peru

Dr Evana Wright, Lecturer, University of Technology Sydney

The Nagoya Protocol requires member countries to implement a framework governing access to genetic resources and associated traditional knowledge and the fair and equitable sharing of benefits arising out of their utilisation. Functional institutions are critical in the implementation and administration of any regime for the protection of traditional knowledge and it is important to learn from the experience of other jurisdictions in the design and implementation of regimes for the protection of traditional knowledge. This paper presents a comparative analysis of the institutions established by India and Peru for the protection of traditional knowledge including the governance of access and benefit sharing under their respective legislative frameworks. The paper identifies lessons for Australia that may inform the design and implementation of a governance system for the protection of traditional knowledge including any competent authority. The comparative analysis identifies the critical role Indigenous and local communities must play in governance systems and institutions for the protection of traditional knowledge along with the importance of local decision making as well as investment in funding and capacity building.

© 2016 Indigenous Knowledge Forum     © 2011 Photography Ann Kurts