That's okay. I typically don't put my title. I try to be humble, but I got lectured by an elder once to ensure that I use it.
[Witness speaks in Ojibwe]
My name is Dr. Lynn Lavallée. I'm currently the Vice-Provost for Indigenous Engagement at the University of Manitoba. I'm an associate professor with expertise in the area of indigenous research ethics.
While a faculty member at Ryerson University in Toronto, I served for over a decade on the university's research ethics board, the REB. In my final four years, I was its chair.
I'm coming to you as an Anishinaabe person who understands traditional knowledge and ceremony from my own limited perspective, while also understanding the importance of promoting creativity and innovation with respect to research and the Copyright Act.
I would like to speak to the tensions I have witnessed with respect to indigenous knowledges and ethical research with indigenous peoples. What I will share is not new and has been discussed for well over a decade. However, we are still having these conversations, which indicates we have not achieved an appropriate balance with respect to indigenous knowledges, intellectual property, and copyright. I hope my involvement here today is not to simply check a box so as to ensure consultation with indigenous peoples, but to achieve further progress in the area of protecting indigenous knowledges, particularly as it relates to research and copyright.
Marlene Brant Castellano has defined indigenous knowledge as traditional teachings being passed down through the generations, empirical research being gathered over time, for instance, observing how medicines can alleviate certain illnesses—and when she says “medicines”, she means traditional medicines—and spiritual knowledge gained through dreams and revelations. Marie Battiste talks about indigenous knowledge as not being a binary of western knowledge, and Willie Ermine speaks of the ethical space between indigenous knowledge and western knowledge, with this ethical space overlapping. This is the space in which we need to do more work to protect indigenous knowledge.
The Copyright Act not only allows for the appropriation of indigenous knowledge but, as Younging has stated, it also opens the door for the legalized theft of indigenous knowledge, because copyright gives copyright to the person who has collected the information. Even though intellectual property is defined as “creations of the mind”, when a researcher speaks to indigenous people, whether they're elders or traditional knowledge holders, the knowledge that is shared is ultimately the creation of the mind of the person sharing the knowledge, yet copyright goes to the collector of the information.
Complicating that even further, some of our indigenous knowledge is not seen as the creation of the mind of the individual. Oftentimes, the knowledge is passed down through the generations, as Sharon has stated. It is not the creation of one person's mind, so intellectual property does not translate for indigenous knowledge. We cannot own indigenous knowledge; it is not our intellectual property as an individual, so for me this is a foundational tension between indigenous knowledge and western knowledge, copyright, and intellectual property.
With respect to indigenous knowledge, copyright is contributing to the need to protect indigenous knowledge and not share it.
As you know, article 11 of the United Nations Declaration on the Rights of Indigenous Peoples states that we need to “redress through effective mechanisms...cultural, intellectual, religious and spiritual property taken without...free, prior and informed consent or in violation of...laws, traditions and customs.”
I want to add that, given the Copyright Act and that academic institutions defer to it, informed consent is not being obtained because of the conflict between what is stated in the Copyright Act and the federal guidelines used by research ethics boards to review research protocols involving people.
Academic institutions are required to have any research involving people undergo an ethical review via their respective research ethics board. REBs implement the federal guidelines, the tri-council policy statement on ethical conduct for research involving humans, otherwise known as the TCPS. The TCPS underwent major revisions in 2010, with chapter 9 focusing on ethical conduct in research with first nations, Inuit, and Métis peoples.
The chapter discusses the importance of community engagement throughout the entire process of the research, from the inception of the research idea to dissemination of the findings. It articulates that the research practices should be guided by a respect for and accommodation of first nations, Inuit, and Métis priorities on joint ownership of the products of research, and maintaining access to data for a community. The TCPS also notes that we should defer to the applicable federal, provincial, and territorial legislation, namely the Copyright Act, which gives copyright to the collector of the information, not the creator or the keeper of that knowledge.