Making the case for Indigenous peoples' ownership of bioactive research

Tracey Whare - IIRC20
Friday, November 20, 2020

This paper argues that Indigenous peoples’ legal systems are best placed to determine Indigenous peoples’ intellectual property rights, particularly when state law provides little guidance or certainty. It is Indigenous peoples’ own legal systems that provide a robust and cohesive legal framework within which such issues can be determined.

Indigenous peoples’ rights are affirmed in the UN Declaration on the Rights of Indigenous Peoples 2007 and the Declaration sets out the minimum standards required to ensure that Indigenous peoples not only survive but thrive as Indigenous peoples. The Declaration addresses intellectual property both in terms of Indigenous peoples’ authority over their intellectual property as well as how others must engage with Indigenous peoples in relation to this set of rights. In addition, the Declaration also recognises the critical role that Indigenous peoples’ own legal systems play in framing and addressing these issues.

By taking an indigenous legal approach that is underpinned by a rights-based framework to the issue of Indigenous peoples’ intellectual property rights, it becomes clear that Indigenous peoples’ legal systems provide not only a distinct framework in which to view the issues but they also provide solutions. This is particularly so when state legal systems do not recognise nor address Indigenous peoples’ rights in relation to intellectual property matters.

In addition, the recognition of Indigenous peoples’ legal systems and the implementation of indigenous legal solutions supports and affirms another crucial right, the right of self-determination. It allows Indigenous peoples to act as sovereign agents in matters that impact them and reinvigorates the use of and reliance upon Indigenous legal systems.

My argument sets out the legal basis upon which these issues can and should be addressed. It also, unsurprisingly has a strong focus on practical outcomes. This is because there is a growing sense of frustration and impatience within the wider indigenous community for less talk and more action in relation to the realisation of Indigenous peoples’ rights.

As such, this paper will consider a case study where state law has been less than helpful and where Māori communities, particularly land owners and hapū of Ngāti Porou have negotiated an outcome with a commercial entity to not only protect their rights but to allow them to engage in economic activity that aligns with their own legal norms and standards. This case study illustrates not only how tikanga Māori as a distinct Māori legal system has been able to address issues of biotechnology research and intellectual property ownership but how it has also reframed the relationship between Māori communities and commercial entities.