Kelompok 1

Legal Culture

1. Nama : Debi DwiJayanti

Nim : EAA 117 176
2. Nama : Indriani Aulia Putri
Nim : EAA 117 157
3. Nama : I Putu Andi Prayoga
Nim : EAA 117 133
4. Nama : Melia
Nim : EAA 117 124
5. Nama : Sumarno
Nim : EAA 117 148
6. Nama : Stepanus Riko Pranata
Nim : EAA 117 168
7. Nama : Yogie Janu Gagah Pratam
Nim : EAA 117 149
In Depth

Indigenous culture not protected in

Canadian law, lawyers and academics say
By Hilary Bird, CBC News Posted: May 31, 2017 5:00 AM CT Last Updated: May 31, 2017
2:18 PM CT

As a young Dene girl, Muriel Betsina says traditional medicine saved her from being horribly
disfigured.
It was winter and her family was living at a bush camp in the Sahtu region of the Northwest
Territories just south of the Arctic Circle. While cooking caribou ribs, Betsina spilled boiling
water down her arms.
She said her mother melted spruce gum, a sacred medicine of the Dene people, and spread the
sap onto a cloth, which was then wrapped around Betsina's burns.
"You don't see no scar, eh? It was right here. That's how powerful it is."
So powerful and sacred that Betsina said she'd give her life to protect it from exploitation.
"It's been here since God made it, since God made us."

Appropriation rampant
Companies around the world are mass producing salve made of spruce pitch or spruce gum
and selling it for as little as $5 a jar.
Under Canadian law, protecting Indigenous traditional medicines, knowledge and cultural
expression designs, dances, stories, names from being exploited may be more difficult
than it seems.
Indigenous cultures in Canada have been appropriated by clothing designers, corporations
and sports teams for decades. Some of those have made millions of dollars by selling
Indigenous designs, names and ideas without consultation or any type of payment.

Not public domain but difficult to protect

"The problem is that Indigenous heritage is often seen as a public domain, free for the taking," said
George Nicholas, a professor at Simon Fraser University who led an eight-year international research
project on cultural appropriation.

"That's not the case. [For] many First Nations, many Inuit and other Indigenous peoples, their
heritage is still vibrant.... When it is threatened, when it is used by others in ways that are
inappropriate or unwelcome, this can cause a variety of harms, not just economic but spiritual."

There are a host of barriers Indigenous groups face when trying to use intellectual-property laws to
protect their cultural heritage.

Intellectual-property law began to take form in the 19th century in western Europe to protect
individual ideas and creations, mainly for economic reasons.

"It wasn't really designed for Indigenous innovation, which is marked by collective processes,
collective custodianship and a very strong spiritual dimension," said Wend Wendland, director of the
Traditional Knowledge Division at the World Intellectual Property Organization in Geneva.

"Some refer to it as a square peg in a round hole."

The main problem facing Indigenous groups looking to use intellectual-property law is that in order
for something like a traditional parka design or carving style to be patented, it has to be unique or
original, Wendland said.

But many Indigenous customs and designs have been passed down from generation to generation
since time immemorial. They have been replicated hundreds if not thousands of times, often making
them unable to be patented.

Wendland also says the current system generally requires some sort of hard copy of what the
copyright or patent is supposed to protect. But many forms of Indigenous knowledge or stories are
often passed down orally.

Exceptions exist, but model may be fundamentally flawed

Some Canadian Indigenous groups have had success using trademarks. The Cowichan Band
Council in British Columbia registered the certification "Genuine Cowichan Approved". It
was created to help differentiate between the traditional Indigenous hand-knitted sweaters
crafted by Coast Salish people and non-Indigenous designers selling counterfeits.
Dianne Hinkley shows off a genuine Cowichan Tribes sweater. ((CBC))

There is work being done to help create a broader system to protect Indigenous intellectual
property. One hundred and eighty-nine states have joined a special committee within the
World Intellectual Property Organization. The organization is working toward an
international treaty that would expand intellectual-property laws to protect Indigenous
culture. It will meet in Geneva next month to continue negotiations.

Whitehorse lawyer Claire Anderson says using the Canadian legal system is counterintuitive
when protecting Indigenous culture.

"If we choose that forum, essentially we would be going to the colonial forum that has taken
away Indigenous rights, and we would be asking the non-Indigenous judges to make
determinations about Indigenous law," Anderson said.

Indigenous law has its own remedies

Anderson said groups should look to their own form of Indigenous law to protect their history
and knowledge.

"Listening to our First Nation elders or listening to people that understand Indigenous laws
and seeking redress through those Indigenous legal forums is a very good starting point
because it provides legitimacy to those Indigenous legal forums."

Anderson says that in Tlingit culture, if someone exploits someone else's design or steals
property, they must apologize in front of the community at a public forum, like a potlatch.
She says some sort of compensation is given whether it's monetary or the gifting of a
song.
But regardless of where the protections come from whether it's Canadian or Indigenous
law Betsina says she hopes they come quickly.

"I had a vision. Our trees were fallen. They had a lot of gum. Somebody's been just peeling
off all the gum from the tree. Of course it's going to die. That's what I saw in my vision.

"It has to be protected."

(source : http://www.cbc.ca/news/canada/north/indigenous-culture-not-protected-in-canadian-law-
lawyers-and-academics-say-1.4138794)
(Wednesday 20 September 2017
12:23 pm)