Legal and political strategies for “protecting” traditional environmental knowledge

Legal and political strategies for “protecting” traditional environmental knowledge in Penticton, Okanagan Nation (British Columbia)

Sean Robertson

ABSTRACT:
The political activities of the Syilx people at Penticton to protect their traditional environmental knowledge (“TEK”) from commercial exploitation are traced and compared against a broad juridico-political framework less as a means to critique their tactics but more to illustrate other political opportunities. An argument for the protection of TEK is made with the caveat that addressing indigenous claims for rights, territory and autonomy are politically prior to the protection of TEK because by definition TEK is based on an on-going relationship between the land, animals, and people. The law and politics of TEK is mapped along a continuum from narrow legal strategies, such as IPRs, trade secrecy, databases, and farmer’s rights, to broader political strategies of cultural meaning-making, where environmental, cultural, and human rights claims are made across a variety of public platforms in the context of a pluri-ethnic state increasingly attuned to the right of indigenous people to have rights. Not only does TEK fail to meet the requirements for western intellectual property rights (“IPRs”), but also IPRs are ill-suited to the protection of TEK for many ethical reasons, notably where it turns TEK into a commodity. An array of cultural meaning-making strategies are also examined; these expand the political by moving beyond the constraints of state-based structures towards new platforms for the publicity of moral claims on the state in the interests of TEK. Realistically, these strategies are only viable over the long term and fail to meet the immediate concerns of indigenous people over TEK. It is argued that the protection of TEK should take the form of trade secrecy and that the resources of indigenous people are best aimed at contemporary struggles for territory and self-governance.