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Liz: Hi, my name is Liz Barron and I'm the project manager for the CARFAC Indigenous Intellectual and Cultural Property toolkit. And I have Merle Alexander, QC, with me today. He's the principal of Indigenous law with Miller and Titerle located on Victoria Island, right now. Merle is a member and Hereditary Chief of Kitasoo Xai’xais First Nation on the mid-coast of British Columbia.

He's the co-leader of the First Nation Economic Development Group and he practices Indigenous Resource Law empowering Nations through Title and Rights affirmation, sustainable economic development and environmental conservation. I had first been introduced to Merle through Greg Younging and Greg's work in this area. And I would just like to thank you for taking the time to participate with our CARFAC project.

Merle: It's my pleasure.

Liz: So, right now we're developing - CARFAC and the advisory committee - is working on our toolkit and some of the areas that we're looking at are our Indigenous intellectual properties and how they relate to artists and in specific for CARFAC, for visual artists. And so what, what ideas do you have around how we assist artists to know more about their intellectual properties?

Merle: Hmm. Well, I mean, probably the most applicable aspect of, I'll just say IP, intellectual property, for artists is copyright. And then I guess there's also some sort of common law themes of sort of like, passing off the idea of sort of, I mean, obviously there are a lot of non-Indigenous artists that sort of try to pass off their sort of copies of our sort of stylistic copying of Indigenous artists work and then sort of try and pass it off as though it is Indigenous. So that's a common other sort of remedy I think that is probably the most applicable.

I mean, I think that the issues are, I mean they're, I think the complicated issues are probably between the artists in their own ation. Which is, I mean, you know, I think like to the extent that sort of say Oral Histories are symbols of your Nation are portrayed in your artwork. I think the regulation of that is really more in the realm of sort of true Indigenous intellectual property law pursuant to either Indigenous customary law or Indigenous legal orders. Well, you know, the rules that apply to whether or not you consider retelling a story through artistic creations.

I think that body of law is actually probably the most complicated element of, of the, which is really, you know, isn't yet that well spelled out in the sense that Indigenous Nations aren't. In the process, aren't really codifying their own intellectual property law. So I think it probably is a complicated subject matter for artists because there is a body of laws and permissions that some artists probably really honour. And then, those that don't then, but then it's difficult because it's not, if it's, if the relevant Indigenous legal order of your Nation isn't in anyway codified or clear, I don't know that, take the average individual artists knows whether or not like they are in compliance or not in compliance.

That's a complicated, it's the Indigenous legal orders, the Indigenous law part, that's actually the most complicated. Like how copyright works and how, sort of, the more sort of Western side of the, of IP works is a little bit more simpler, right? Because it's spelled out in the copyright act this whole body of intellectual property law, there's a whole series of materials you could sort of you could access, you know, through, you know, a whole variety of different sort of mechanisms that are designed for artists. So you can have a sense of sort of where your what, your intellectual property rights are in terms of copyright and how it lives, how it's sort of attributed to you for your, for your life. The complicated part is the actual content. You know, I think that's actually where, where, how the content of your art is potentially regulated by Indigenous law. I think that's, that's the most complicated part. And, at least to my knowledge, that hasn't really been thoroughly examined by any Indigenous Nation. So, you know, it varies, it varies by medium, the medium is different too. Right?

Liz: But in the Canadian copyright laws, the traditional aspects are not traditionally covered within the Canadian copyright law. So in moving this within, to an Indigenous community, whether it be First Nation, Metis or an Inuit community, would it be the band councils that would develop this? Where, how would this start?

Merle: Well it shouldn't. Well, I mean, you're sort of all, that's also a good, difficult question, I think right now, because that's right at the heart of asking yourself who is the, who is the rights holder? Which is a very active debate right now. The whole, publicly, we're probably seeing some of the, like you, I think that's probably one of the most difficult emerging Indigenous law issues. You can see it sort of playing itself out with the Wet'suwet'en struggle within, between Hereditary Chiefs and elected band councils.

The same issue was going to arise in another LNG facility where Hereditary Chiefs of the Tsimshian First Nation were challenging, approval that were made by the Indian bands on certain projects. So the key question, so it's becoming, who are, who holds Indigenous rights? Is it them, is it elected Indian bands or is it hereditary Chiefs or is it both now?

Liz: It just also brings up not all of the First Nation communities have Hereditary Chiefs, so...

Merle: Yeah, of course, or customary leadership, whatever that is, whatever it looks like, you know, heads of families. And I mean, I think there's, I mean, there are some Nations, I think don't, you know, don't have an active traditional governance system any longer either because I mean, the Indian Act in colonization was successful and undermining like traditional leadership structures. I mean, or at least, you know, that's what some communities will sort of say, you know, if they haven't had any sort of hereditary leadership for a couple of generations, it's sort of a sense that governance system, either has to be reinvigorated or, you know, because it's sort of been dormant.

I mean, I personally think that those legal orders still continue and that they are never extinguished and that they can be brought back to life. And that is happening, in different, in different communities at different, you know, the different Indigenous communities are on a different path towards sort of reinvigorating their own, their own legal systems. But it's like everyone is on a, sort of a different path, but my knowledge, my general sense of things is that there are few, if any Indigenous communities or Indigenous ations in Canada that have really sort of started structuring what their intellectual property regime, they're own Indigenous and Indigenous property regime might actually, or intellectual property regime might look like.

I mean, it doesn't mean that there isn't like those laws aren't alive and well. It's a little bit more, I think it's a little bit more complex in the visual art realm than it might be say, in sort of the transmission of specific stories. Which also has copyright elements to it, you know, when someone retells, I think they can, at least I only really know like my own, I'm not in any way, an expert in all Nations. The last thing, I think like the worst thing that could happen, I think would be if, if somehow in the pursuit of trying to create an Indigenous intellectual property rights, we ended up just creating a pan-Indigenous approach.

So I only really know, in a way, what happens within Tsimshian culture, I think our, I mean, I've seen the way big houses work in different communities also. But I just generally do get as a sense that like to retell certain stories, you need certain permissions. Especially to tell those stories, like in the big house, the way it works in Tsimshian law. And that, to me, that process is alive and well and people are honouring that. And when they go offside, that's also that there are also repercussions. I don't know that the visual art realm if, if any, anyone has the resources to really require compliance.

And if we ever will be in a position to sort of, sort of look at the content of, I think like there's still going to be a lot of work into that particular aspect of Indigenous intellectual property about visual images because there's a live discussion that needs to occur about whether or not we're taking sort of static representations or a dynamic interpretation of particular stories. Which of course, artists on a regular basis are constantly taking a dynamic view to traditional stories and making them, modernizing them and applying them in, you know, in real time.

But, you know, there isn't really to my knowledge, the only body of law that's being consistently applied is Western intellectual property law, like copyright or something. I don't know that there are a lot of Indigenous communities that have the resources, or even that it's a current priority to develop laws about how their artists represent, you know, their culture and other types of arts and visual arts.

Liz: In the discussion about stories and being able to share those stories, whether in, in the house or out how that process that, if I wanted to write this story, who do I go to in the community to say, I want to share this story outside of our community? Do communities have specific people or is it, my family can share this story only, and not my neighbour's family? What would that process be? And anything that could be copied for visual arts.

Merle: Yeah. I mean, I think that those are good questions, but I think those questions could only be answered at the community level. I think in some communities, it could, you know, in some house governance structure it is, you know, it can be like the, house representative that can make those calls, that person can give permission and others, like there's a Hereditary Chief may be the leader of that particular aspect of that family sort of Clan for lack of a better term, but then you, but then there's still underneath that a reciprocal relationship whereby the Hereditary Chief has to ask his family members and consult them before making decisions.

So, I mean, I think it, you know, it's, you mean, you're talking about applying local law to, you know, which were the, at the end of the day, those questions can, I can only really be answered, I think at a local level. But you have to ask those questions, I think.

Liz: Because also some visual artists are not, and haven't been in their home community for a generation and it's, you know, how then do you go back to your community to look at if you're work engages a traditional aspect to it.

I had been speaking with David Garneau, and he had an interesting definition for traditional cultural work, Aboriginal work, and then contemporary work and the traditional cultural work is those designs that are specific to that community. And they're only used by that community and they're not for sale. It stays within those families in those communities. The Aboriginal content is about changes and adapting cultural images within a community for market. So, the Pendleton blanket, which is a really easy one, you know? Cause it incorporates kind of traditional design, but it has a contemporary aspect to it. And then you go to Indigenous or full contemporary interpretations. It typically like any other major contemporary artist's production that there isn't that engagement with the community that there may or may not be a traditional or Aboriginal aspect to the creation of that work.

So those three, the, you know, the traditional, the Aboriginal and the contemporary artists. I think that those three, like to split up a visual artist into those three sections is interesting because a contemporary artist that doesn't have the connection to their community per se, or is producing work based on, so, I'm in Treaty One territory. So looking at the, you know, some of the creations coming out of Treaty One territory that they don't go back to their community because their work is an interpretation of an experience, an image that may have come from a community rather than taking traditional beadwork or traditional weaving or basket making and making it for public consumption.

Would that be an easier way for, I guess, that idea of the copyright and permission to, for artists to be able to work within that context?

Merle: I mean, they're just made up, I mean, they're made up concepts, right? I mean, it would, it would be convenient, right. To try and draw these lines and pretend that they, those are very hard line distinctions. I mean, sure, you create a definition, you create the criteria around it, and then you just like start trying to fit things into those compartmentalizations. I mean, we do it in our own lives all the time, too, you know, that's the dark box. This is the happy memory box. And to put that in there and here's...I mean, it's an artificial, human created modern concepts to sort of try and figure out these compartmentalizations.

The Maori did the same thing where they had this really, unfortunately it really, it wasn't even very, I don't, I hope the Maori weren't the ones that actually came up with the categories. It was like Maori made, more than Maori made and they were, they did the same sort of thing. It's a little bit along the same lines where you sort of try and create these sort of categories of, you know, traditional, modern, purely commercial. Those things exist in, in, in law too. Like in a way Indigenous rights are sort of being similarly put into those categories. There's, like you take hunting or fishing, trapping, right. If something, it's, there's food, social ceremonial, there's moderate livelihood. And then there's commercial nature. So you can create those categories, but they're still at the end of the day, I don't know that they have any roots.

They may be convenient because then artists can feel like they just sort of place themselves into the category that works for themselves and then have to answer to no one or, you know, it's, I think. We need a better sense of the breadth of the applicable Indigenous law and know whether or not we're actually complying with it. It's unfortunately that's, you know, I think for the time being it's going to, it's going, there's going to be this perception. I think that we're into the lawless environment with Indigenous law, without any definition, doesn't create any restrictions on the uses, until somebody goes really offside.

And you get, you get the worst examples, you get, are things where you, like, there's lots of examples here in British Columbia, where archeologists or anthropologists came, took stories from, from communities, that were either intended for sharing are not intended for sharing. But once the way that the operations of the law work to the favor of the publisher. So you have traditional stories that were then commercialized for publication. And then the only person that had any legal rights to the stories was the non-Indigenous anthropologist. People use examples like that, you know, that are sort of on the outside, realm of sort of worst case examples.

And what it generally presumes is that there is no law that already bound the story. And then that there was nothing going forward to bind it. And really, the real interaction should have ended there, like the Indigenous legal perspective and the common law perspective should have applied to both of them equally throughout and then you'd sort of figure out, I guess, what their proper ownership is on an ongoing basis. But we're not there right now. Partly because our laws are embedded in, it's even in the medium, and the medium is the same medium that we're drawing for the same medium of that's being used by artists for interpretation, like Oral Histories, is also the same source for the law.

So we're sort of at the infancy, I think, in most Indigenous communities that try starting to interpret and pull out the legal principles within Oral Histories. A lot of that sort of the infancy of that work is happening all over all over the country. But the, probably, the most prominent example actually is here in Victoria where the joint, where there is an Indigenous legal research unit of UVIC law, which is taking Oral Histories and sort of pulling out the legal elements of it and then interpreting it through a whole bunch of different lenses. They're like, okay, here's the property law elements of that oral history. Here's the intellectual property elements. Here are the, you know, that work is sort of at the very beginnings of it. And I think until that body of law becomes much more developed, we're not going to know where those right lines are and what the right compartments are. Who makes the compartments?

Yeah. It's yeah, it's a plus there's a lot of, UVIC has a law degree, the joint Indigenous degree where you people, for the it's, it's the only law school in the country, or sorry, in the world, where graduates we'll have a common law, like a JD and they'll have a joint Indigenous degree. So in four years, these students will have a dual degree, the same way that students from McGill have a common law and civil law degree. You'd have an Indigenous law and a common law degree at the end of the program. And they're trying to sort of interpret a whole bunch of different elements. For your purposes is, the interesting part of it will be to see whether over time, a body of law, or at least some core principles around Indigenous intellectual property laws start being developed. That's I think the most interesting part of it.

Liz: Sorry, are they just looking at one specific territory or are they looking across the country from East to West Coast?

Merle: Well, it's mostly led in part by the origins of the different communities that the legal scholars come from. So there's, you know, because John Borrows is from, is one of the founders is Anishinaabe, law as being brought to bear, like Val Napoleon, who is the other co-founder she works with lots of Tsimshian, Wet'suwet'en and Gitksan communities, so there's lots of that. You know, Gitksan property law. There's a Cree criminal law because there's some of the professors are, you know, so it depends if, right now it's sort of there and the initial work is more about, I mean, this Nation's specificity is used as examples, but then hopefully on underlying, is the methodology, or just sort of uplifting, like looking at Oral Histories instead of applying a methodology, which affirms that there is law within our, within our ral Histories, not just like pure artistic creations or like great stories, you know, that there's lessons and you know, which we know, I think as Indigenous People that that's like that has that multi-dimensional element to it.

But it's at its infancy, like in 20 years or something of, you know, 10 or 20 different graduate classes and people who start finding a way to actually specializing in Indigenous intellectual property. I think we'll have a better sophisticated sense of sort of, what are some of the core principles. I mean, that'll be a couple of generations of artists though, who will sort of feel like they're in this sort of this lawless world where they're trying to figure out how, what their own communities would say, or they're not at all. And they're just saying well, there's nothing I know, so I'm going to, you know, I'm going to. portray, you know, this trickster this way. And I'll take my artistic liberties and interpret it as I see fit. I mean, it'll like, I think at some point we'll probably retroactively, look back and see that we would, if we applied Indigenous law, that there was many instances where we were breaking our own law.

But at this time, I think the only way of really knowing would be to have some sort of consultation mechanism where you could sort of at least speak to traditional knowledge holders and get some sort of sense that you know what you're doing isn't inconsistent with your cultural norms. But those categories of traditional, Aboriginal and contemporary, like those are just artificial, like mostly designed sort of say, okay, I can not use that, I can do whatever I want in this category, and I answer to no one in this other category. I think it's, they're sort of designed to be, fitting yourself into one of those categories is partly, probably designed by what limitations, if any, you want to have on your work?

Liz: Well, and a component of this, the part of the research that's currently happened, did bring in the Maori visual arts protocols and going through that more, a traditional art piece. So that information is, I guess, has been used as part of the research that has been incorporated into, you know, the Canadian version as well. So I could see where those separations came from. And so I find that really interesting. And of course, what else are looking at you know, the Inuit labels.

So now the Inuit have their new, I guess it's a sticker or something that actually proves that it was truly done by an Indigenous Inuit person and they have all rights to produce that image or create that sculpture or tell that story. And that's another piece of the research that's currently being done.

And in our draft document that we have in place, one of the areas, that there, there is more exploration around is that idea community and community engagement and through that process. And I find it interesting that not all communities have a, I guess, process in place on that idea of permission granting. Is that even what it would be? Permission granting? To be able to share a story or do an interpretation or, trickster, to design trickster in a different way, or incorporate trickster into a piece of work that's not, you know, that's in a main gallery exhibition space. And is that even allowed?

Merle: Yeah. I mean, you only really get the test of it when you start doing things that are a bit more provocative, like say you take, you know, if an artist creates like a piece of work where there's rape with a traditional mask on or something, you know, occurring, to make a statement, you know, that they're essentially a statement your culture is getting raped.

That on some levels, could really be offensive and probably contrary to many Indigenous like legal orders. There's lots of different cultures or different like nations that, in that traditional imagery would be specific to, but let's say it's a very distinctly Kwaguʼł mask portrayed by, you know, and it's an Indigenous, it's a Pocahontas character being raped by a white person wearing that mask. I think there are things that are, sorry just coming up with this, very scary, scary graphic image. But I mean, it's only, it's the value of that work is that you can see that has some real potent value as a statement.

I mean, but you also completely offend, Kwaguʼł Nation to have that mask and particularly use that, whatever that family crest is. You know what you might end up actually very specifically copying a real original existing work that is of someone's actual ownership in a tangible property, you could, you can sort of see that there's a whole bunch of layers to that onion that you could really go offside with and then offend a lot of people, including the Nation that you were trying, in some ways we're trying to sort of say, this is bullshit, this has happened to our people. But you know, you're in the, in the process of that, you completely offend your own, offend the people that you were trying to, I guess.

Liz: Well share that horrific story with.

Merle: Yeah. Right. It's you could just, there's just so many different, I think if you were in a perfect world, I guess you would, are in a, in the imaginary world, I guess, if you were like, okay, this is what the, this is what I'm thinking. I am a Kwaguʼł artist who I'm going to do this. I mean, you might think, okay. I should at least try and see whether or not there is an appropriate body within the Kwaguʼł Nation that I can talk to about whether or not this art, this idea, artistic idea is something that would, that would be contrary to our law because they don't want to start off, I don't want to, make the point of breaking your own law by actually, if you're trying to call, if you're trying to say, commit a crime by committing them by breaking a law. If you know what I'm saying?

Liz: Right, well and this brings up a really good question then is how can the artists declare assert, affirm, their respective rights in creating that kind of work. If they, in specific, say that mask was not a family trademark or design, but just an interpretation of a mask, but it's generally recognized from that territory that this is one of our masks, so how do you, how then do artists, I guess, be able to create that work? So is it limiting, limiting artist? I don't know.

Merle: Yeah. I mean, those are the hard questions at this work, right? You know, that's the, I mean, I think at minimum, we need to start creating some mechanisms that we can go back instead of, at least know that there is an obligation probably there if you're creating such a work and then hopefully over time, communities will create those bodies that will be easier conduits. If not, I mean, you could certainly.

So I've sort of talked through this sort of process a few times, I remember, like we were trying to figure out a process for the, during the 2010 Olympics, because artists were actually some of the first like Indigenous entrepreneurs that were immediately like front and center saying, okay, here's a gigantic opportunity for us to showcase our people and our work to the world. How do we, how do we do that? But also how do we do it in an authentic way? Because we don't want tourists from all around the world coming. And then just going to like Gastown and buying copies, basically copies of our art because it's cheaper than the actual art.

I think that the initial thoughts, if the timelines were too tight, was that you would create potentially, sort of like a list of experts, on particular arts. You would take, you know, a Tsimshian expert, the Nations that do exist, you'd start there. That was just sort of ad hoc though.

Liz: Thank you so much for your time.

Merle: Yeah, you're welcome.