Indigenous Peoples and the Protection of Their Secret Knowledge: A Promising Pathway Ahead
Masoni, C. (2017). Indigenous Peoples and the Protection of Their Secret Knowledge: A Promising Pathway Ahead (Thesis, Doctor of Philosophy (PhD)). The University of Waikato, Hamilton, New Zealand. Retrieved from http://hdl.handle.net/10289/11442
Permanent Research Commons link: http://hdl.handle.net/10289/11442
This work focuses on the intangible, secret aspects of indigenous peoples’ cultures and how such secret information is protected by indigenous guardians or holders. This is because much of indigenous culture is imbued with spiritual significance for indigenous peoples and, consequently, it is not made available to the rest of the community and the world at large. This thesis examines the reasons why it is important to preserve indigenous cultures and secret practices that today survive in indigenous communities. The thesis demonstrates that secrecy is seen as essential to the preservation of indigenous secret knowledge. Indigenous guardians are responsible for the preservation of the information, and they commonly use secrecy to preserve the knowledge and, when they share it, they choose limited, confidential circumstances to do so. This work argues that it is important to make reasonable space in the existing body of laws which have so far failed to effectively protect indigenous secret practices and information. The case study described in this thesis helps understand how states are currently trying to listen, understand and accommodate indigenous claims brought forward at the national and international fora. The thesis reviews the legal protection currently available to indigenous secret knowledge in national and international law. The first 6 chapters introduce indigenous cultures, holism and indigenous peoples and international law, and chapter 7 describes the New Zealand case Wai 262 and the recommendations given by the Waitangi Tribunal. The remaining chapters analyse indigenous cultures and intellectual property laws, identifying gaps in the existing mechanisms for protection and underlining why, as of today, intellectual property law does not guarantee adequate protection to indigenous secret knowledge. The last chapter analyses the law of breach of confidence as a possible instrument to safeguard indigenous secret information and the duty of care performed by indigenous guardians in preserving such knowledge. It argues that the existing law of confidentiality can usefully evolve to protect cultural secret information as a growing category in its own right and that indigenous secret information can find protection as confidential information.
The University of Waikato
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