HOUSE OF REPRESENTATIVES

H.C.R. NO.

227

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 
   


HOUSE CONCURRENT

RESOLUTION

 

REQUESTING A STUDY ON THE RIGHTS OF NATIVE HAWAIIANS.

 

 

WHEREAS, native Hawaiians are the indigenous people of the Hawaiian archipelago and have never given up their inherent right of self-determination; and

WHEREAS, the collective intellectual property rights of the native Hawaiians are based upon the traditional, cultural knowledge developed over thousands of years and passed down from generation to generation; and

WHEREAS, the value of native Hawaiian traditional knowledge is exhibited in many forms, including natural resource management principles, such as malama 'aina and the ahupua'a system; and agricultural systems such as lo'i and loko i'a, la'au lapa'au, and ka ho'okele; and

WHEREAS, the value of native Hawaiian cultural expressions and art forms is exhibited in many forms, including the use of ka 'olelo Hawai'i, hula, mele, oli lei, making, kapa making, wood carving, kakau, weaving, lua, and canoe building; and

WHEREAS, the western intellectual property system was developed to protect the rights of creators and inventors against plagiarism and to reward and encourage new inventions, and was not developed to protect the rights of indigenous people and their collective, traditional knowledge, cultural expressions, and art forms; and

WHEREAS, the current western intellectual property regime, recognizing patents, registered trademarks, designs, and copyrights, often facilitates the theft, misuse, and misappropriation of indigenous knowledge by researchers, authors, scientists, biotechnology corporations, and universities, among others; and

WHEREAS, issues relating to indigenous intellectual property rights have been addressed in many international forums, including the World Intellectual Property Organization's Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore; the United Nations Commission on Human Rights; the Draft Declaration on the Rights of Indigenous Peoples; and in relation to the environment in Agenda 21 of the Rio de Janeiro Summit and the Convention on Biological Diversity; and

WHEREAS, the western intellectual property rights law concept of "public domain," which refers to that which is not claimed as private property or that which is commonly known or disclosed, is interpreted as information which can be freely accessed and used; and

WHEREAS, much of the native Hawaiian's knowledge of plant, animal, and human genetic resources and cultural expressions, which are now considered to be in the public domain, were acquired from the native Hawaiian people without free, prior, and informed consent; and

WHEREAS, the native Hawaiian's collective traditional knowledge, cultural expressions, art forms, and intellectual property rights include:

(1) The requirement that all cultural consent must be acquired under free prior informed consent;

(2) The right to refuse to participate or authorize the use of intellectual property rights;

(3) The requirement that all cultural content must be reviewed for accuracy and appropriateness;

(4) The retention of copyright authority of all indigenous knowledge that is shared with others for documentation purposes;

(5) The need to ensure controlled access for sensitive cultural information that has not been explicitly authorized for general distribution, as determined by members of the native Hawaiian community; and

(6) The need to arrange for benefit-sharing agreements;

and

WHEREAS, other indigenous peoples have developed strategies and sui generis legal systems to protect their collective intellectual property rights and knowledge; and

WHEREAS, in November 2002, the Association of Hawaiian Civic Clubs (Association) adopted Resolution No. 02-08, urging the State of Hawai'i to place a moratorium on all bioprospecting expeditions currently being undertaken on public lands, submerged lands, and natural resources under the State's jurisdiction until appropriate legislation can be enacted; and

WHEREAS, in November 2003, the Association adopted Resolution No. 03-13, urging the Legislature of the State of Hawai'i to enact legislation, in consultation with Native Hawaiians, that recognizes and protects the Native Hawaiian peoples' collective intellectual property rights; and

WHEREAS, the Paoakalani Declaration, a unifying statement by:

(1) Hawai'i's foremost kumu hula;

(2) Elders skilled in la'au lapa'au, traditional and contemporary artists;

(3) Individuals who engage in cultural expressions, including spiritual and ceremonial practice, subsistence agronomy, marine economic pursuits, and the maintenance and transmission of Hawai'i's oral traditions;

(4) Teachers and academics; and

(5) Attorneys attending Ka 'Aha Pono, a conference on native Hawaiian intellectual property rights organized by the 'Ilioulaokalani Coalition in October 2003,

calls upon government, the private sector, and the public to develop and implement policies and practices consistent with the Declaration in full consultation with Kanaka Maoli; and

WHEREAS, the laws of the State of Hawai'i recognize the traditional and customary rights of native Hawaiians, but do not currently expressly recognize and protect the collective intellectual property rights of the native Hawaiian people; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-second Legislature of the State of Hawaii, Regular Session of 2004, the Senate concurring, that the Legislature acknowledges the native Hawaiian people as indigenous, traditional knowledge holders and that they have collective intellectual property rights; and

BE IT FURTHER RESOLVED that the Department of Business, Economic Development, and Tourism is requested, in collaboration with the Office of Hawaiian Affairs, State Foundation on Culture and the Arts, Department of Commerce and Consumer Affairs, Department of Land and Natural Resources, and any other relevant and interested state agency, to conduct a study on:

(1) The rights of the native Hawaiians as traditional, indigenous knowledge holders;

(2) The impacts of western intellectual property rights on native Hawaiian rights; and

(3) The cultural, social, and economic development of the native Hawaiian people;

and

BE IT FURTHER RESOLVED that the University of Hawaii is requested to adopt a Board of Regents policy that acknowledges the collective intellectual property rights of the native Hawaiian people, and that the native Hawaiian people retain equitable title to the State's biological diversity and biological resources on public lands, as defined by section 171-2, Hawaii Revised Statutes, as assets of the public trust; and

BE IT FURTHER RESOLVED that the federal government is also urged to recognize the native Hawaiian people and other indigenous, native people living within the United States as

being indigenous, traditional knowledge holders, and that they have collective intellectual property rights that must be recognized by the United States Copyright Office, and the United States Patent and Trademark Office; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the President of the United States, Majority Leader of the United States Senate, Speaker of the United States House of Representatives, Registrar of Copyrights of the United States Copyright Office, Director of the United States Patent and Trademark Office, Governor, Chairperson of the Board of Trustees of the Office of Hawaiian Affairs, Director of Business, Economic Development, and Tourism, Executive Director of the State Foundation on Culture and the Arts, Director of Commerce and Consumer Affairs, Chairperson of the Board of Land and Natural Resources, Chairperson of the Board of Regents, and President of the University of Hawaii.

 

 

 

OFFERED BY:

 

Report Title:

native Hawaiians