Common law aboriginal knowledge protection rights: Recognizing the rights of aboriginal peoples in Canada to prohibit the use and dissemination of elements of their knowledge

Michael Halewood
School of Law, York University (Canada)
July, 2005


In Canada, under certain conditions, aboriginal peoples enjoy collectively held rights, recognized in common law, to preclude others from using, reproducing, and disseminating their knowledge. Common law aboriginal knowledge protection rights can be defined by either (1) the 'integral to distinctive culture' test, as established by the Supreme Court in Van der Peet, or (2) the doctrine of continuity. Pursuant to the former, aboriginal peoples' knowledge protection-related practices, traditions, and customs that are 'integral to their distinctive culture' are enforceable in common law courts across the country and constitutionally enshrined pursuant to section 35(1) of the Constitution Act, 1982. Pursuant to the doctrine of continuity, aboriginal communities would enjoy rights created by aboriginal laws and rights-creating customs that have continued, unextinguished, since the acquisition of Crown sovereignty. Those rights would also be enforceable in common law courts and would be constitutionally enshrined pursuant to section 35(1)
under some circumstances. Aboriginal knowledge protection rights defined through either means would vest collectively in aboriginal peoples or nations per se and be subject to their internal regulation, advantages that are generally not available under existing intellectual property laws.
Canadian courts' current reliance on the 'integral to a distinctive culture' test should not preclude recognition of the doctrine of continuity to define aboriginal rights; there are four arguments to reconcile the concurrent use of both. Assuming the Canadian government will recognize aboriginal legislative jurisdiction (and aboriginal adjudicative jurisdiction and courts) the author analyzes the enforceability of knowledge protection rights created pursuant to that jurisdiction. Aboriginal courts could assume jurisdiction over some cases, but probably not those involving unauthorized 'takings' by non-resident, non-aboriginals, outside aboriginal territories---perhaps the most important scenario to be able to address. When aboriginal courts would have jurisdiction, their judgments would likely be enforced by provincial courts across Canada.
Common law aboriginal knowledge protection rights provide aboriginal complainants with a hitherto unexploited cause of action; they can also be 'mined' for elements to be included in future sui generis statutory laws and introduced into international negotiations concerning protections for traditional knowledge.