THE SENATE

S.C.R. NO.

167

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 
   


SENATE CONCURRENT

RESOLUTION

 

RECOGNIZING NATIVE HAWAIIANS AS TRADITIONAL, INDIGENOUS KNOWLEDGE HOLDERS AND RECOGNIZING THEIR COLLECTIVE INTELLECTUAL PROPERTY RIGHTS.

 

WHEREAS, the Native Hawaiian people, also known as the Kanaka Maoli, are the indigenous, native people of the Hawaiian archipelago and have never relinquished their inherent right of self-determination; and

WHEREAS, the Native Hawaiian peoples’ collective intellectual property rights 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 through natural resource management principles, such as malama ‘aina and the ahupua‘a system; 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 artforms 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 reward and encourage new inventions and was not developed to protect the rights of indigenous peoples to their collective, traditional knowledge, cultural expressions, and artforms; and

WHEREAS, the current western intellectual property regime, recognizing patents, registered trademarks, designs and copyright, often facilitates the theft, misuse and misappropriation of indigenous knowledge by researchers, authors, scientists, biotechnology corporations, universities, and 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 peoples’ knowledge and 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 peoples without free, prior, and informed consent; and

WHEREAS, the Native Hawaiian peoples' traditional, indigenous knowledge is not in the public domain; and

WHEREAS, the Native Hawaiian peoples’ collective traditional knowledge, cultural expressions, artforms and intellectual property rights include the requirement that all cultural content must be acquired under free prior informed consent; the right to refuse to participate or authorize use of intellectual property rights; the requirement that all cultural content must be reviewed for accuracy and appropriateness; the retention of copyright authority over all indigenous knowledge that is shared with others for documentation purposes; ensuring 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 arranging 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 adopted Resolution No. 02-08, urging the State of Hawai‘i to place a moratorium on all bio-prospecting expeditions currently being undertaken on public lands, submerged lands, and natural resources under the State’s jurisdiction until such time as appropriate legislation can be enacted, and in November 2003, 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 Hawai‘i’s foremost kumu hula; elders skilled in la‘au lapa‘au, traditional and contemporary artists; and individuals who engage in all cultural expressions, including spiritual and ceremonial practice, subsistence agronomy, marine economic pursuits, and the maintenance and transmission of Hawai‘i’s oral traditions; teachers and academics; and attorneys attending Ka ‘Aha Pono, a conference on Native Hawaiian intellectual property rights organized by ‘Ilioulaokalani Coalition in October 2003, calls upon government, the private sector, and the public to undertake 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 peoples; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-Second Legislature of the State of Hawaii, Regular Session of 2004, the House of Representatives concurring, that the Native Hawaiian people are recognized 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 urged, in collaboration with the Office of Hawaiian Affairs, the State Foundation on Culture and the Arts, Department of Commerce and Consumer Affairs, Department of Land and Natural Resources, and any other relevant state agency, to conduct a study on the rights of the Native Hawaiian people as traditional, indigenous knowledge holders and the impacts of western intellectual property rights on those rights and the cultural, social, and economic development of the Native Hawaiian people; and

BE IT FURTHER RESOLVED that the University of Hawai‘i 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 urged to also recognize that the Native Hawaiian people and other indigenous, native peoples living within the United States are 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, the Majority Leader of the United States Senate, the Speaker of the United States House of Representatives, the Register of Copyrights of the United States Copyright Office, the Director of the United States Patent and Trademark Office, the Governor of the State of Hawaii, the Speaker of the Hawaii State House of Representatives, the President of the Hawaii State Senate, the Chair of the Board of Trustees of the Office of Hawaiian Affairs, the Director of Business, Economic Development, and Tourism, the Executive Director of the State Foundation on Culture and the Arts, the Director of Commerce and Consumer Affairs, the Chair of the Board of Land and Natural

Resources, the Chair of the Board of Regents of the University of Hawaii, and the President of the University of Hawaii.

 

 

 

OFFERED BY:

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Report Title:

Recognizes Native Hawaiians as traditional, indigenous knowledge holders; recognizes Native Hawaiians' collective intellectual property rights; and requests DBEDT to conduct a study regarding native Hawaiian rights.