Mariela Gutierrez Olivares is an IP Innovation Clinic Fellow and a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

The parts of my law school journey I have most enjoyed have been the opportunities for hands-on learning such as Osgoode’s IP Innovation Clinic and mooting experiences. The IP and Technology Intensive stood out to me as a unique opportunity for additional hands-on learning. I am pleased to share that my placement at Indigenous Services Canada (ISC) was a valuable learning opportunity which has made a lasting impact on my career trajectory.

Truthfully before I learned I would be completing my placement at ISC I did not know much about the organization. However, I was immediately intrigued upon learning about ISC’s mission:

Indigenous Services Canada (ISC) works collaboratively with partners to improve access to high quality services for First Nations, Inuit and Métis. Our vision is to support and empower Indigenous peoples to independently deliver services and address the socio-economic conditions in their communities.

I was excited to see what the ISC’s work is like, given their distinct and obsolete mission. This extraordinary mandate resonated deeply with me and my interest in social justice, however it was not immediately obvious that type of work I might expect to do or witness at ISC.

My placement was on the Innovation Team, under the Partnerships and Innovation Directorate in the Evaluation and Policy Redesign Branch. The , mandates ISC to take an innovative approach to policies and programs with aim of implementing a gradual transfer of services to Indigenous organizations. To this effect, the Partnerships and Innovation Directorate oversees a variety of different projects, including a strategic partnership fund, a results-based innovation network, international collaboration arrangements, efforts to eliminate anti-Indigenous racism, and a variety of other projects with specific Indigenous communities.

While my internship experience was virtual, team members from different regions throughout Canada made me feel welcome. I was invited to join team meetings where I was able to become well acquainted with the team’s ongoing projects. In addition, I was also invited to meet with ISC staff outside of the Directorate, staff in other government departments, and partners at Indigenous organizations. I also received plenty of support as I carried out research on data governance and intellectual property. Though I started my placement with little knowledge about ISC and the services they deliver, I was able to gain a broad understanding of the various projects the team is engaged in and found myself learning a great deal about the complexities of government work in particular as it relates to the delivery of services for Indigenous communities. Although I completed my placement remotely, I felt like a valued member of the team. Everyone at ISC was very generous with their time and willing to help me.

My placement gave me an opportunity to gain exposure to a unique government work setting and a direct look at how policy is enacted to advance department goals. Much of my law school courses have been focused on the theoretical underpinnings of law and how it is developed and interpreted in the courts. Though policy considerations are certainly present in the legal curriculum, we rarely consider what happens to policies as they are enacted and refined over time. This is precisely what I had a chance to witness at ISC. As Canada strives to advance reconciliation with Indigenous communities, departments like ISC have the tall order to delivery critical services and build (or re-build) relationships with Indigenous Peoples in Canada with a view toward transfer of services.

I had an amazing time during my placement with the Innovation Team at Indigenous Services Canada. I was deeply impacted by my experience, as witnessing the dedication of the team and their commitment to the department mission inspired me to consider a career in public service. I firmly believe my work as an intern has helped me strengthen my research, writing, and advocacy skills. My time in the IP and Technology Intensive has enriched my law school journey in a way that I did not imagine possible, and I am deeply grateful for that.

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Emily Papsin is the Co-Editor in Chief of the Obiter Dicta and a JD Candidate at Osgoode Hall Law School.

Growing up, Luke didn’t feel Indigenous at all. Most of his family lived on or near the reserve on Scugog Island quite close to Lindsay, Ontario, where he was born. “We’d go out to res very often, but it never felt like an Indigenous community, it was just my family,” he tells me as we sit on opposite sides of a picnic bench on a cold November morning in front of his studio in downtown Kitchener. Luke and his sister are members of the Mississaugas of Scugog Island First Nation, but only started to take reconnecting to their culture seriously about five years ago. “[In] Kitchener, honestly, we’re pretty invisible,” he says of the Indigenous population nearby, “unless you attended a local university, it’s hard for young Indigenous people to connect.” He found other Indigenous people his age mostly by fluke, through his fledgling art career, and through a one-off, local Indigenous-only archaeological digging job. Since then, he and his sister have been on a journey of reclaiming their culture and sorting through all that was lost.

We discuss a familiar history that explains how his Indigeneity fell into the background.�� Luke and his sister are only learning their traditions later in life, as they never got the chance to learn them any earlier. “I don’t blame anyone for how we were raised. My parents were loving and supportive, but it’s tough, the intergenerational trauma is a tough thing” he tells me as an explanation for his lack of exposure. Luke’s tone has a gentle bluntness about it that lacks any resentment while discussing realities that would no doubt inspire an understandable amount.��

The push towards his own identity is tough to nail down, but from what I understood, it started with a bear. Luke has been an artist since high school, but never had a style of his own. He had been exposed to art through his father, and because of other well-known Indigenous artists like Norval Morrisseau, but he still felt insecure that the only reason he was doing art was the fact that he was decent at it. The deeper meaning, that at least colloquially, most artists seem to need was lacking in his work. That changed, however, when he drew for the first time with his culture in mind as his inspiration. He decided to draw a bear, and now he tells me that “bears come up a lot in my art now, and that definitely means something.” He describes the feeling that most people look for when they’ve decided to take a leap, and realize with immense relief that their wings are properly attached. “It was […] this overwhelming feeling of ‘this is what I should be doing, and this is who I am and it’s something I have been suppressing for most of my life.’”

I asked him about that suppression, and whether or not it was conscious. He said it wasn’t something he had done actively, and that instead it stemmed from a lack of exposure, and the internalization of his identity. It is hard to actively suppress something that isn’t even part of your self-concept. Luke explains that aside from his family, he didn’t know a single Indigenous person. “In terms of my Indigeneity, I knew it existed, but it was rooted on Scugog Island with the rest of my family, and it wasn’t here.” He says this with the same gentleness that I realize is a hallmark of his Indigenous rediscovery, too. Lacking from our conversation was any sense that he could have done or known any better. There is simply a sense of prevailing satisfaction and acceptance at the fact he has gotten to where he is.

As we spoke, Luke touched on facets of reclaiming Indigeneity that I hadn’t heard anyone speak about before. He said that his father struggles with learning how to feel worthy of reclaiming the Indigenous culture he had lost. I was surprised, but in hindsight, that was probably naïve. I asked if this sense of unworthiness was common when reconnecting to Indigenous roots. “I think for all of us there is [that sense of unworthiness]. It’s tough, this stigma, that if you don’t look or talk a certain way then you’re not Indigenous. […] there’s an insecurity that we don’t belong in this community.” Thankfully, he followed that with the acknowledgement of that being more of a perception, than a reality. “The more we interact with the community, the more we realize that’s not the case.”

Public Perception��

Luke says that he is “shocked at how well-received [his art] is.” This is true of both the broader Indigenous and non-Indigenous community, and the relatively conservative Germanic community that makes up the majority of Kitchener-Waterloo. The reason behind his art’s accessibility is a simple one; “one thing that I set out to do in my art was to make it clear that I was learning, which I think is super relatable for people in the wider Indigenous community.” Still, as his online presence grew, he felt an immense pressure on himself to be “more Indigenous than [he was], and to know more than [he does].” Those competing pressures of that feeling of unworthiness juxtaposed with the need to represent something that he is still discovering for himself could be debilitating, but Luke is optimistic. He tells me that generally, people seem to see what he is doing, and appreciate it.

Future Outlook

Luke admits he’s not much of a planner. He went from basically not having a career, to doing lots of work in a short amount of time. Kitchener has given him a fair amount of work in spite of the city’s general hesitancy about him early in his career. That is especially true since the city figured out that the pandemic wasn’t going to stop all public art from being possible. A quick lap around the city’s downtown will show you a mural of a crane the size of a school bus, and a series of colourful animals painted onto the sidewalk that are hard to miss. While he admits he is still early on in his career, and he has yet to choose what his favourite things to do are, some of his preferences are clear. Public art and murals are a favourite. “Original acrylic paintings on canvas?��Not��my thing!”

As for bigger goals, Luke wants to “create an Indigenous art community even just within the city.” He makes special mention of a space for Indigenous queer artists as well, in that “if I don’t feel like there’s space for me, they certainly don’t.” It’s also not all positive. A few years ago, he and some other Indigenous artists tried to coordinate a space for their community through art gallery curators, business owners, and local representatives, but that had a “rather dramatic ending.” Luke’s answer to that is that they’re just going to do it themselves. He is realistic about the resistance of the city to change, but still finds a way to be kind. “There are good people in the city. The system is against us, but not necessarily the people within the system.”

As our conversation wound down, I asked him why he thought art was the way forward. He answered that it all comes down to representation, and that when he was growing up, a huge part of why he didn’t feel Indigenous is that he just didn’t see it anywhere. “I feel like it’s such a special thing for me to be able to create public art that is so clearly Indigenous, for maybe those kids here that feel the same way. That, oh, there’s other people like me, and that’s something I can be proud of.”

Luke’s art can be found at����or on Instagram .

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In 2019, with the help of a German lawyer, the controversial patent on has been challenged. A Dutch company had been holding the patent on processed teff flour, the grain that Ethiopian farmers have been cultivating for nearly 3,000 years. What makes this particularly glaring, apart from the fact that teff is native to Ethiopia, is that the Dutch company concerned had also collaborated for research on teff with the and agreed to share the findings. The Dutch teff patent not only stripped millions of Ethiopian farmers of their rights, but also led to a , thereby making it inaccessible for poorer urban Ethiopians.

Moreover, an anti-fungal product derived from Azadirachta indica, commonly known as neem or Indian lilac, was by the United States Department of Agriculture and W. R. Grace and Company. Neem is a tree that is native to the Indian subcontinent and has been used for its medical benefits for more than . The Indian government successfully challenged the patent on the grounds of prior use and obtained a ruling in its favour by the European Patent Office (EPO). W. R. Grace subsequently appealed on the ground that prior art of the product had never been published in any scientific journal. However, the appeal was lost and the EPO

Another example of biopiracy is the British patent by Syngenta for the strain of Impatiens walleriana, also known as Syngenta bred a new strain of Busy Lizzie called the that “can achieve at maturity, trails of 70cm masses of large flowers”. An analysis of Syngenta’s new “floral invention” revealed that Syngenta cross-bred the Busy Lizzie with a rare African plant called Impatiens usambarensis, native and unique to the Usambara region of Currently, the company is making a fortune selling these plants by monetising their natural disease resistant qualities but to the native communities of Tanzania. A recent study demonstrated that Africa may be losing more than USD from its biodiversity as medicines, cosmetics, agricultural products, and indigenous knowledge relating to these are being patented illegally, despite prior use by local communities for generations as illustrated by multinational companies, without there being evidence of benefits accruing to local communities in the countries of origin.

Biopiracy emerged as a issue after the inclusion of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) by the WTO which universalised Euro-American notions of patentability, enabling the extraction of traditional knowledge from the Global South as the “” and its return to the South as a commodity. As per the TRIPS, WTO member countries must comply with a minimum threshold of IP protection, which encompasses patentability of life forms that can be deemed to be ‘invented.’ Thus, it comes as no surprise that the was a direct result of because the benefits of this predictably flow to many US based agro-chemical and pharmaceutical industries.

Further, the Convention on Biodiversity 2000 was meant to treat biodiversity as a category of nationally sovereign genetic resources, inscribing a propertied meaning upon components of the often-sacralised natural world of local communities. This global reduction of nature, locally considered as a “quasi-rational and moral whole or even as an autonomous world of living beings endowed with measure of dignity” to an “object of right capable of alienation” can be used as a theoretical starting point to critique the expansion of Western Intellectual Property Rights regimes tyrannising the most marginalised populations in the Global South.

The (IGC),constituted in 2000, was tasked with the negotiation for a legal framework for protection of traditional knowledge, folklore and genetic resources. The IGC’s efforts have been further complemented by the ��in 2010. However, even as the mandate of the IGC has been to the next biennium (2020-2021), the legitimacy of its processes and terms of negotiation continues to be suspect due to the woeful by indigenous communities as well as little budgetary allocation to enable their participation in the IGC’s negotiations.

Biopiracy is illustrative of the developmental monoculture and agenda underscoring Global IP regimes and their exploitative extension to the developing world. The chronopolitics of these negotiations are fascinating because indigenous communities are now being increasingly compelled to defend their culture at, what is regarded by dominant Western narratives as, the cost of the public domain. However, the countries currently championing the public domain in the context of Traditional Knowledge, led by the US were the same ones that relentlessly bolstered IP protection over the decades to exclusively reap the benefits of the ‘knowledge’ they ‘sophisticated’ by utilising raw materials from the Global South. It is vital to explore both the material, human and social costs as well as impact of Global IP protection in the status quo while imagining alternative and more contextual non-Eurocentric methodologies to protect traditional knowledge, that place native welfare and social justice instead of commerce and efficiency at the centre.

Written by Elif Babaoglu and Anupriya Dhonchak. Elif Babaoglu is a contributing IPilogue editor and the co-director of events at the Osgoode Privacy Law Society. Anupriya Dhonchak is an international exchange student at Osgoode Hall Law School from National Law University, Delhi and is currently working as a Research Assistant to Dr. Carys Craig

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