Can cultural appropriation inform our understanding of ABS?

The idea of borrowing, imitating and using aspects of indigenous culture has sparked plenty of debate. Dr. George Nicholas, a professor at Simon Fraser University, has created aguidebook to confront this issue and to help limit the impact of cultural appropriation. More importantly, Dr. Nicholas’s research on cultural appropriation can inform our understanding of access and benefit sharing (ABS).

As Dr. Nicholas points out, appropriation means to “take something that belongs to someone else for one’s own use” while misappropriation is a “one-sided process where one entity benefits from another group’s culture without permission and without giving something in return”.

Cultural appropriation comes in many forms. Indigenous imagery, design, and symbols have been appropriated for monetary gain by the art market and the fashion industry. In many cases, this is done without obtaining permission or providing compensation to the communities that associate the symbol and elements with a sacred meaning. There tends to be no repercussion taken against designers that ignore a culture and borrow aspects of it because their intellectual property rights are usually favoured over the collective rights held by indigenous communities.

To avoid misappropriation, Dr. Nicholas recommends engaging in creative collaborations that adhere to some of the following principles:

Obtaining free and prior informed consent from the community when initiating collaboration so that the community is in a position to make decisions with the necessary knowledge and authority

Reciprocity and benefit-sharing so that an appropriate balance is struck between both parties in terms of what is received and what is given in exchange.

Building a trusting and balanced relationship that enables shared control over process and product

Although Dr. Nicholas’s recommendations are limited to designers and marketers, his principles can also be extended to the utilization of genetic resources accessed from indigenous communities. International legal instruments such as the Nagoya Protocolregulates the utilization of genetic resources as well as traditional knowledge associated with these resources based on similar principles. Access to genetic resources requires prior informed consent (PIC) of the party providing the resources and as a result, consent of indigenous communities must be obtained, when applicable. Benefits arising from the use of the genetic resources have to be shared based on mutually agreed terms (MAT), whether they are monetary or non-monetary benefits. In situations when indigenous knowledge about genetic resources is used for profit, without permission and compensation, this is what we call biopiracy.

In comparison with indigenous cultural expressions, the utilization of genetic resources from indigenous communities is more effectively regulated because of the international ABS system. Indigenous art and expressions are recognized under theUnited Nations Declaration on the Rights of Indigenous Peoples(UNDRIP), which was adopted in 2007. It acknowledges the urgent need to respect and promote rights of indigenous people derived from their culture, history and tradition. UNDRIP protects both tangible and intangible forms of art and knowledge and the protection extends to human and genetic resources. However, the Declaration doesn’t provide guidance on how the exchange of this knowledge can actually be monitored to promote fairness and equity. The Nagoya Protocol provides provisions which allow for the monitoring of utilization of genetic resources including those accessed from indigenous communities through nationally designated checkpoints and certificates of compliance.

The legal tools and the key principles highlighted above provide important ways of preventing future exploitation of indigenous cultures and most importantly, allow indigenous culture and resources to be shared in a way that is not contrary to their values.

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Vipal Jain is a Research Assistant with ABS Canada. Her interest in international intellectual property, biotechnology and sustainable development brings her to ABS. Vipal is currently a second year JD law student at the University of Ottawa. She is also the co-founder of BioTown, a nonprofit organization in Ottawa that encourages accessible science. Vipal holds a Bachelor of Science with a specialization in genetics and biotechnology from the University of Toronto.