Search the archive.

Jeroen Warner & Sumit Vij, “No, There Will Not Be a War for Water,” New Security Beat, January 10, 2022, https://www.newsecuritybeat.org/2022/01/no-war-water/

Defense ministers, military generals, NGOs, UN Secretaries-General and environment-focused academics all repeat the misguided hypothesis that increasing resource scarcity leads to conflict. Since Al Gore’s Inconvenient Truth movie, the narrative keeps expanding to include climate-induced mass migration, climate disasters, and even climate wars.

The first argument that “interstate cooperation on freshwater resources prevails over conflict” is supported by historical evidence. While there are some analyses indicating that sharing of international rivers might increase the probability of militarized disputes (Toset, Gleditsch & Hegre, 2000) it has been shown that the majority of water-related interstate conflicts have been resolved in a cooperative way (Wolf, 2007). The cost of warfare by far would hardly be justified by the appropriation of a resource that does not directly lead to high profits such as water (Selby, 2005). A systematic search for a water war with interstate violence produced only one result, pointing at the military conflict of the city-states of Umma and Lagash over the use of the Tigris river in 2,500 BCE, as the only water war that has ever happened (Gleick, 1993). The solid presence of cooperative interactions and the clear absence of formal wars over freshwater resources are also supported by the analysis of contemporary times. The relatively large number of water treaties among countries sharing water bodies can be considered as a compelling evidence of cooperation (Wolf, 1998). An exhaustive dataset on interactions between two or more states on water resources in the second half of the 20th century reveals that out of 1,831 interactions, conflictive or cooperative, ~67% were cooperative. Of the 507 more conflictive events, only 43 cases were associated with military acts while 414 were limited to verbal hostility. No events were categorized as formal war (Wolf, Yoffe, & Giordano, 2003). The second argument that can be described as a form of “technological optimism,” stems from the belief that the development of new technologies, the adoption of modern agricultural techniques, and the use of science-based methods of crop distribution will increase freshwater availability or enhance water use efficiency in agriculture, mining or other industries, thereby reducing competition for water and conflict. Although not explicitly formulated as an argument to dismiss the emergence of water wars, this confidence in future technological and science-based solutions to produce more with less, is motivated by research on the development of new cultivars that are more drought-adapted or have higher water use efficiency (“more crop per drop,”, see Falkenmark & Rockström, 2004), the adoption of agricultural techniques that reduce nonproductive water consumption associated with soil evaporation and inefficient irrigation technology (e.g., Jägermeyr et al., 2016), the selection of crops that are more suitable to the local hydroclimatic conditions (Davis, Rulli, Seveso & D'Odorico, 2017) and the reliance on strategies and technologies for waste reduction and reuse (Kummu et al., 2012). Technological advancements ranging from large-scale desalinization to new local systems of water purification have led to a widespread trust in techno fixes that can also improve drinking water availability. Collectively, technological advances can reduce the competition for water resources, however, some of these fixes may have detrimental environmental and social costs (D'Odorico et al., 2018; Palmer et al., 2015). The third argument, describes how the anatomic differences between water and oil as strategic economic resources, are explicative of the fact that water, differently from oil, does not justify interstate military intervention. It is clear that oil is prevalently at the center of contemporary geopolitical tensions, violence, conflicts and interstate wars. Oil is associated with civil conflicts and can be a major cause of regional interstate conflicts. Water instead, while being increasingly associated with local violent conflicts in the global South, has practically never been systemically associated with interstate conflicts nor wars (Selby, 2005). The political economy of these resources is essentially different because of several intrinsic characteristics. Oil, for example, is a motor of industrial production while water is more of a key input for biological processes, including agricultural production; oil is geographically unevenly distributed and nonrenewable while water is a renewable and relatively widely distributed resource; oil leads to very high profits and tends to be oligopolistically organized, while water tends to be a public or common-pool resource which does not directly lead to high profits (Selby, 2005). The last argument is about the strategic power of virtual water. Central to this argument is the work of Allan (1996, 1998, 2002) which elaborates on how water resources can be appropriated through the transnational trade of agricultural commodities. The adjective “virtual” is used to stress that such water is not physically present in the commodities that are traded. Some regions of the world, such as the Middle East, do not have enough water to produce all the food required to feed their populations. This situation could be expected to lead social tensions. However, according to Allan, reliance on international trade has allowed these countries to circumvent their chronic water scarcity and meet their needs. In this light, trade can be explicitly considered as a mechanism that has a water-saving function (Hoekstra & Chapagain, 2008; Konar, Hussein, Hanasaki, Mauzerall & Rodriguez-Iturbe, 2013). Allan (1998) noted that the importation of agricultural commodities and other goods is associated with the virtual transfer of the water resources used to produce those goods. More specifically, his work (Allan, 1996, 1998, 2002, 2003, 2005) described how countries' dependence on water for agriculture, which on average accounts for 70% of the entire global water consumption (Richter, 2014), is often satisfied by the import of agricultural commodities. He demonstrates his argument relying also on historical evidence. In the case of the Middle East and North Africa, Allan (1998) estimates that virtual water flows associated with the importation of grains from North America exceeds the actual water flows in the Nile River. It is by analyzing the virtual water trade phenomenon that Allan comes to the conclusion that it is much more logical and convenient to trade with foreign countries and import virtual water from them rather than going at war with them. Despite some analytical criticism (Ansink, 2010), virtual water trade remains at the basis of one of the key arguments used to refute the “water leads to war” thesis. Other studies, mostly on the industrial sector, are also supporting the view that trade reduces the likelihood of conflict, though their focus is neither on water resources nor on virtual water trade (De Angelis, Metulini, Bove, Ricaboni, 2017; Dorussen, 2006; Hegre, Oneal, Russett, 2010). The counterargument, could be that trade has sustained population growth in importing countries, thereby enhancing water scarcity, trade dependence and consequently increasing in the long run the risk of instability while reducing societal resilience (D'Odorico, Laio & Ridolfi, 2010; Suweis et al., 2013). According to these four arguments and other, not less important, analytical contributions, there is consensus that water wars should be considered a dispelled myth (Barnaby, 2009). Practically nonexistent instead are recent scholarly contributions that actively support the water leads to war thesis. Gleick (1993) is often referred to in the context of water violence history. However, Gleick's accounts of water-related conflicts are not at the state level and, when organized national warfare happens, it is for water as a military strategic target, never for water as the primary cause of military intervention (Wolf, 1998, 2007). Also in the case of the Israeli-Palestinian confrontation over water in the West Bank, there have been many instances of conflicts but none that can be formally considered a water war (Zeitoun, 2007) as water, rather than being the reason for the conflict, is described as a strategic tool used for military purposes (Selby, 2003).

As writers such as Niccolo Machiavelli, Max Weber, Reinhold Niebuhr, and Hannah Arendt have taught, an unyielding concern with moral goodness undercuts political responsibility. The concern may be morally laudable, reflecting a kind of personal integrity, but it suffers from three fatal flaws: (1) It fails to see that the purity of one's intention does not ensure the achievement of what one intends. Abjuring violence or refusing to make common cause with morally compromised parties may seem like the right thing; but if such tactics entail impotence, then it is hard to view them as serving any moral good beyond the clean conscience of their supporters; (2) it fails to see that in a world of real violence and injustice, moral purity is not simply a form of powerlessness; it is often a form of complicity in injustice. This is why, from the standpoint of politics--as opposed to religion--pacifism is always a potentially immoral stand. In categorically repudiating violence, it refuses in principle to oppose certain violent injustices with any effect; and (3) it fails to see that politics is as much about unintended consequences as it is about intentions; it is the effects of action, rather than the motives of action, that is most significant. Just as the alignment with "good" may engender impotence, it is often the pursuit of "good" that generates evil. This is the lesson of communism in the twentieth century: it is not enough that one's goals be sincere or idealistic; it is equally important, always, to ask about the effects of pursuing these goals and to judge these effects in pragmatic and historically contextualized ways. Moral absolutism inhibits this judgment. It alienates those who are not true believers. It promotes arrogance. And it undermines political effectiveness.

1.2. THE ETHICS OF EXISTENTIAL RISK In his book Reasons and Persons, Oxford philosopher Derek Parfit advanced an influential argument about the importance of avoiding extinction: I believe that if we destroy mankind, as we now can, this outcome will be much worse than most people think. Compare three outcomes: (1) Peace. (2) A nuclear war that kills 99% of the world’s existing population. (3) A nuclear war that kills 100%. (2) would be worse than (1), and (3) would be worse than (2). Which is the greater of these two differences? Most people believe that the greater difference is between (1) and (2). I believe that the difference between (2) and (3) is very much greater. ... The Earth will remain habitable for at least another billion years. Civilization began only a few thousand years ago. If we do not destroy mankind, these few thousand years may be only a tiny fraction of the whole of civilized human history. The difference between (2) and (3) may thus be the difference between this tiny fraction and all of the rest of this history. If we compare this possible history to a day, what has occurred so far is only a fraction of a second.65 In this argument, it seems that Parfit is assuming that the survivors of a nuclear war that kills 99% of the population would eventually be able to recover civilisation without long-term effect. As we have seen, this may not be a safe assumption – but for the purposes of this thought experiment, the point stands. What makes existential catastrophes especially bad is that they would “destroy the future,” as another Oxford philosopher, Nick Bostrom, puts it.66 This future could potentially be extremely long and full of flourishing, and would therefore have extremely large value. In standard risk analysis, when working out how to respond to risk, we work out the expected value of risk reduction, by weighing the probability that an action will prevent an adverse event against the severity of the event. Because the value of preventing existential catastrophe is so vast, even a tiny probability of prevention has huge expected value.67 Of course, there is persisting reasonable disagreement about ethics and there are a number of ways one might resist this conclusion.68 Therefore, it would be unjustified to be overconfident in Parfit and Bostrom’s argument. In some areas, government policy does give significant weight to future generations. For example, in assessing the risks of nuclear waste storage, governments have considered timeframes of thousands, hundreds of thousands, and even a million years.69 Justifications for this policy usually appeal to principles of intergenerational equity according to which future generations ought to get as much protection as current generations.70 Similarly, widely accepted norms of sustainable development require development that meets the needs of the current generation without compromising the ability of future generations to meet their own needs.71 However, when it comes to existential risk, it would seem that we fail to live up to principles of intergenerational equity. Existential catastrophe would not only give future generations less than the current generations; it would give them nothing. Indeed, reducing existential risk plausibly has a quite low cost for us in comparison with the huge expected value it has for future generations. In spite of this, relatively little is done to reduce existential risk. Unless we give up on norms of intergenerational equity, they give us a strong case for significantly increasing our efforts to reduce existential risks. 1.3. WHY EXISTENTIAL RISKS MAY BE SYSTEMATICALLY UNDERINVESTED IN, AND THE ROLE OF THE INTERNATIONAL COMMUNITY In spite of the importance of existential risk reduction, it probably receives less attention than is warranted. As a result, concerted international cooperation is required if we are to receive adequate protection from existential risks. 1.3.1. Why existential risks are likely to be underinvested in There are several reasons why existential risk reduction is likely to be underinvested in. Firstly, it is a global public good. Economic theory predicts that such goods tend to be underprovided. The benefits of existential risk reduction are widely and indivisibly dispersed around the globe from the countries responsible for taking action. Consequently, a country which reduces existential risk gains only a small portion of the benefits but bears the full brunt of the costs. Countries thus have strong incentives to free ride, receiving the benefits of risk reduction without contributing. As a result, too few do what is in the common interest. Secondly, as already suggested above, existential risk reduction is an intergenerational public good: most of the benefits are enjoyed by future generations who have no say in the political process. For these goods, the problem is temporal free riding: the current generation enjoys the benefits of inaction while future generations bear the costs. Thirdly, many existential risks, such as machine superintelligence, engineered pandemics, and solar geoengineering, pose an unprecedented and uncertain future threat. Consequently, it is hard to develop a satisfactory governance regime for them: there are few existing governance instruments which can be applied to these risks, and it is unclear what shape new instruments should take. In this way, our position with regard to these emerging risks is comparable to the one we faced when nuclear weapons first became available. Cognitive biases also lead people to underestimate existential risks. Since there have not been any catastrophes of this magnitude, these risks are not salient to politicians and the public.72 This is an example of the misapplication of the availability heuristic, a mental shortcut which assumes that something is important only if it can be readily recalled. Another cognitive bias affecting perceptions of existential risk is scope neglect. In a seminal 1992 study, three groups were asked how much they would be willing to pay to save 2,000, 20,000 or 200,000 birds from drowning in uncovered oil ponds. The groups answered $80, $78, and $88, respectively.73 In this case, the size of the benefits had little effect on the scale of the preferred response. People become numbed to the effect of saving lives when the numbers get too large. 74 Scope neglect is a particularly acute problem for existential risk because the numbers at stake are so large. Due to scope neglect, decision-makers are prone to treat existential risks in a similar way to problems which are less severe by many orders of magnitude. A wide range of other cognitive biases are likely to affect the evaluation of existential risks.75

2. What Is GCR And Why Is It Important? Taken literally, a global catastrophe can be any event that is in some way catastrophic across the globe. This suggests a rather low threshold for what counts as a global catastrophe. An event causing just one death on each continent (say, from a jet-setting assassin) could rate as a global catastrophe, because surely these deaths would be catastrophic for the deceased and their loved ones. However, in common usage, a global catastrophe would be catastrophic for a significant portion of the globe. Minimum thresholds have variously been set around ten thousand to ten million deaths or $10 billion to $10 trillion in damages (Bostrom and Ćirković 2008), or death of one quarter of the human population (Atkinson 1999; Hempsell 2004). Others have emphasized catastrophes that cause long-term declines in the trajectory of human civilization (Beckstead 2013), that human civilization does not recover from (Maher and Baum 2013), that drastically reduce humanity’s potential for future achievements (Bostrom 2002, using the term “existential risk”), or that result in human extinction (Matheny 2007; Posner 2004). A common theme across all these treatments of GCR is that some catastrophes are vastly more important than others. Carl Sagan was perhaps the first to recognize this, in his commentary on nuclear winter (Sagan 1983). Without nuclear winter, a global nuclear war might kill several hundred million people. This is obviously a major catastrophe, but humanity would presumably carry on. However, with nuclear winter, per Sagan, humanity could go extinct. The loss would be not just an additional four billion or so deaths, but the loss of all future generations. To paraphrase Sagan, the loss would be billions and billions of lives, or even more. Sagan estimated 500 trillion lives, assuming humanity would continue for ten million more years, which he cited as typical for a successful species. Sagan’s 500 trillion number may even be an underestimate. The analysis here takes an adventurous turn, hinging on the evolution of the human species and the long-term fate of the universe. On these long time scales, the descendants of contemporary humans may no longer be recognizably “human”. The issue then is whether the descendants are still worth caring about, whatever they are. If they are, then it begs the question of how many of them there will be. Barring major global catastrophe, Earth will remain habitable for about one billion more years 2 until the Sun gets too warm and large. The rest of the Solar System, Milky Way galaxy, universe, and (if it exists) the multiverse will remain habitable for a lot longer than that (Adams and Laughlin 1997), should our descendants gain the capacity to migrate there. An open question in astronomy is whether it is possible for the descendants of humanity to continue living for an infinite length of time or instead merely an astronomically large but finite length of time (see e.g. Ćirković 2002; Kaku 2005). Either way, the stakes with global catastrophes could be much larger than the loss of 500 trillion lives. Debates about the infinite vs. the merely astronomical are of theoretical interest (Ng 1991; Bossert et al. 2007), but they have limited practical significance. This can be seen when evaluating GCRs from a standard risk-equals-probability-times-magnitude framework. Using Sagan’s 500 trillion lives estimate, it follows that reducing the probability of global catastrophe by a mere one-in-500-trillion chance is of the same significance as saving one human life. Phrased differently, society should try 500 trillion times harder to prevent a global catastrophe than it should to save a person’s life. Or, preventing one million deaths is equivalent to a one-in500-million reduction in the probability of global catastrophe. This suggests society should make extremely large investment in GCR reduction, at the expense of virtually all other objectives. Judge and legal scholar Richard Posner made a similar point in monetary terms (Posner 2004). Posner used $50,000 as the value of a statistical human life (VSL) and 12 billion humans as the total loss of life (double the 2004 world population); he describes both figures as significant underestimates. Multiplying them gives $600 trillion as an underestimate of the value of preventing global catastrophe. For comparison, the United States government typically uses a VSL of around one to ten million dollars (Robinson 2007). Multiplying a $10 million VSL with 500 trillion lives gives $5x1021 as the value of preventing global catastrophe. But even using “just" $600 trillion, society should be willing to spend at least that much to prevent a global catastrophe, which converts to being willing to spend at least $1 million for a one-in-500-million reduction in the probability of global catastrophe. Thus while reasonable disagreement exists on how large of a VSL to use and how much to count future generations, even low-end positions suggest vast resource allocations should be redirected to reducing GCR. This conclusion is only strengthened when considering the astronomical size of the stakes, but the same point holds either way. The bottom line is that, as long as something along the lines of the standard riskequals-probability-times-magnitude framework is being used, then even tiny GCR reductions merit significant effort. This point holds especially strongly for risks of catastrophes that would cause permanent harm to global human civilization. The discussion thus far has assumed that all human lives are valued equally. This assumption is not universally held. People often value some people more than others, favoring themselves, their family and friends, their compatriots, their generation, or others whom they identify with. Great debates rage on across moral philosophy, economics, and other fields about how much people should value others who are distant in space, time, or social relation, as well as the unborn members of future generations. This debate is crucial for all valuations of risk, including GCR. Indeed, if each of us only cares about our immediate selves, then global catastrophes may not be especially important, and we probably have better things to do with our time than worry about them. While everyone has the right to their own views and feelings, we find that the strongest arguments are for the widely held position that all human lives should be valued equally. This position is succinctly stated in the United States Declaration of Independence, updated in the 1848 Declaration of Sentiments: “We hold these truths to be self-evident: that all men and 3 women are created equal”. Philosophers speak of an agent-neutral, objective “view from nowhere” (Nagel 1986) or a “veil of ignorance” (Rawls 1971) in which each person considers what is best for society irrespective of which member of society they happen to be. Such a perspective suggests valuing everyone equally, regardless of who they are or where or when they live. This in turn suggests a very high value for reducing GCR, or a high degree of priority for GCR reduction efforts.

Later within the Navajo Nation docket, the District Court granted the Navajo Nation's motion for summary judgment and determined that the NAVAJO trademarks had not become generic, even noting that a "strict construction of trademark forfeiture is especially appropriate given the origin of the "Navajo" mark and the fiduciary duty the United States owes the Indian Tribes."95 The Court noted that Urban Outfitters failed to show that the NAVAJO trademarks had become generic in the minds of consumers or that the Navajo Nation abandoned the marks. For those reasons, the tribe successfully had Urban Outfitters' affirmative defenses and counterclaims of genericness, and abandonment, thrown out with prejudice.96 The parties would eventually agree to an undisclosed settlement.97 Though it was not a trial win for the tribe, the Navajo Nation case demonstrates that tribes can and should monitor and regulate third-party use of their names. It also reveals that courts are willing to evaluate the fiduciary role that the United States maintains with tribes when dealing with tribal intellectual property rights.

Another reason for not being able to rely on copyright for refusing documentation is the nature of the works. The Berne Convention allows contracting countries to determine their own originality threshold; however, judicial interpretations usually revolve around a form of “judgement, creativity or intellectual contribution.” Most of the oral traditions would not be original due to their cross-generational nature, as it is possible that the same stories are transferred each time with very minor original contribution. Embracing a low originality threshold would mean that future members of the same community could make minor changes and enjoy copyright protection each time, but it would also mean that non-Indigenous parties could enjoy copyright with very little input from themselves.

Even if the oral traditions satisfied the requirements for copyright, it would be hard to determine who controls them. Most jurisdictions define the author as the individual who creates the work, and some jurisdictions even recognize legal entities as authors of some works. In rare cases, it is possible to find oral traditions where the creator’s name is mentioned within the expression. But, most of the time, it is impossible to determine who created the oral traditions, especially if the work is created a long time ago and it is part of a “collective pool of creative resources.” Even when the community accepts the necessity to identify a single, specific author (who can then exercise the rights and have control), this reduces the options available to the rest of the community. There is also a great risk of parties assuming that oral traditions themselves are in the public domain and therefore can be used by anyone.

But there is a problem with the public domain. Those who create and wish to market goods and art that reflect traditions that are older than the twentieth century tend to find no help in the standard and established modes of intellectual property protection. Their work, no matter how creative or labor intensive or important to their cultural identity, is considered part of the grand global cultural commons. So multinational corporations can produce similar goods (pottery, cloth, garments, sculptures, jewelry, etc.) at lower prices. And these companies can leverage their marketing power better than small producers and merchants in poorer countries can.

Significantly for many of these cultural groups, replication of their traditional forms of cultural expression can be disrespectful of histories, identities, and religions as well. Intellectual property offers very little support for collective dignity. As several scholars of indigenous and traditional cultural production have argued in recent years, the cultural production of local communities is devalued not only because it is produced by marginal communities with no political power, but also because so much of that cultural production reflects traditions older than copyright. You cannot protect what has long been in the public domain without significantly revising the entire global intellectual property system.

Related to the derivative work problem, a new issue has emerged since the inclusion of sound recordings in the Copyright Act of 1976: sampling—”the act of taking a portion of one sound recording and reusing it as an instrument or an audio recording in a different song or piece.”66 For example, the modern genres of hip hop and rap both depend heavily on sampling for musical expression.67 Yet, sampling was quickly blocked by the courts. In Grand Upright Music, Ltd. v. Warner Brothers Records, the Southern District of New York held that Biz Markie’s rap song “Alone Again” impermissibly sampled a portion from Gilbert O’Sullivan’s “Alone Again (Naturally).”68 The Court held—devastatingly for genres like rap—that sampling without permission from the original copyright owner constituted blatant copyright infringement.69 Obtaining licenses for every sample presented a significant logistical and financial burden for rap artists.70 And unlike other parts of music copyright, there is no compulsory license for sampling (i.e., reproducing the sound recording); it is instead up to the copyright owner’s discretion whether to license the work or not, and to name the price.71 This forced rap artists to change how they create music or risk copyright sanctions.72 Indeed, the challenges posed by copyright to Black artists have led many to alter their creativity or leave music entirely.73 A third way in which U.S. copyright law has not equally protected racial minorities’ creative works is in requiring a known, recently alive author to gain copyright protection.74 Many centuries old, traditional Indigenous and non-Western songs and arts have communal or unknown creators.75 U.S. copyright law requires a known author and only protects works for a limited period of time, leaving these important but ancient works in the public domain.76 While such works remain unprotected, others can exploit traditional music and arts for their own profit without worrying about copyright infringement claims.77 This facilitates the free commercial repurposing of Indigenous cultural symbols and practices.78 U.S. copyright law defines creative arts as endeavors that are at least partially about making a profit,79 but this commercial approach is at odds with other artistic traditions. For example, Indigenous and non-Western societies around the globe value music as integral to their communities’ culture, and for non-commercial purposes such as medicine.80 The commercial appropriation of Indigenous cultural expression can be especially harmful due to the spiritual or nature of these works. 81 Thus, in these three ways, copyright law’s structure poorly serves living musical traditions.

Behind the statutory intellectual property laws, these distinct but interrelated residual domains illuminate the multifaceted character and modes of the immanent metaphor. Canadian jurisprudence does not have a positive account of either the Indigenous or public domains. Under the influence of parliamentary supremacy, law professor Teresa Scassa articulated that Canada’s public domains are conceived of as the “leftovers” of statutory intellectual property rights—the melancholic and fragile crumbs that remain once its statutory appetite is satisfied. Its scope is elastic and indeterminate; it can be expanded or shrunk by either legislative enactment or judicial interpretation. 31

Canadian jurisprudence on intellectual property rights has focused on statutory laws. Judicial references to the public domain have been rare and insipid. The courts have recently affirmed the view of the public domain as a pre-existing source of Canadian intellectual property laws, which are constructed from the Eurocentric traditions 32 and appropriated Indigenous traditions. 33

Legal pluralism is a reality, ignored by colonization, yet it previously was and presently is an essential function of society. There are myriad examples in modern western legal systems when micro law systems operate within larger, macro law systems, where the former is parallel to and accommodated by the latter. One example is the principle of federalism where state law sometimes operates alongside, in addition to, or instead of federal law. Another example is the concept of private ordering or self-regulation characterized by the law of the firm or corporation or in the context of Internet activities. A third example is the rise of the supranational legal regime, such as the European Union. Thus, the concept of legal pluralism can be invoked as the foundation for developing a sui generis system of legal protection based upon Indigenous law in functional operation alongside state, national, and international laws to protect Indigenous resources and8 intangible assets.

II. ACKNOWLEDGING HISTORICAL CONTEXT

In Canada, the Indigenous domain continues to be part of the supreme law of the land. 41 Canada’s constitution recognizes and affirms Aboriginal and treaty rights. 42 The SCC has affirmed that Aboriginal peoples’ constitutional rights are collective, communal, or group rights. 43 The constitutional rights generate the Indigenous domain, a metaphor for a holistic source of these rights. The Indigenous domain reveals the interrelated manifestations of the spiritual realm that generates diverse Indigenous lifeworlds. 44 These spiritual forces of nature have inspired and guided Indigenous peoples’ knowledge. 45 The Indigenous domain’s creativity and expressive modes have generated Aboriginal sovereignty, inherent powers, rooted constitutionalism, persuasive laws, and consensual treaties. 46 The Indigenous domain, which in Latin is called ex proprio vigore or sui generis, was vested in the Indigenous nations by the law of nations at the critical date when the British sovereign asserted jurisdiction over Indigenous territories. 47

The Indigenous domain has always been grounded in the ecologies that operate as the Indigenous peoples’ education system, just as nature is the Eurocentric public domain’s source. Their experiences with biotic and abiotic forces shaped their knowledge systems. The Indigenous domains have many Indigenous keepers and generators of knowledge, so that families continually generate distinctive heritages, identities, and landscapes. 48 The oral traditions and symbolic literacy of Indigenous peoples reveal the continent’s embodied and teaching ecologies, investing their ancestors’ knowledge, imagination, and experiences. This enduring spiritual process of generating knowledge, stories, and artistic media that makes people live right has never ceased; they have been a method of “survivance.” 49 It has survived the linguistic violence of colonialism and forced assimilation.

When this article promotes its theme of indigenizing intellectual property law, it means to apply legal pluralism to justify employment of Indigenous law as a primary source of law to begin the development of a sui generis legal system to bring to the fore essential protections for Indigenous knowledge, tangible and intangible cultural materials and artifacts, secret and sacred information and know-how, cultural expressions, and the biogenetic resources justly owned and possessed by Indigenous Peoples. By urging adoption of the indigenizing paradigm, this article implies that the current and most widely used and recognized laws governing intellectual property are, in their current form, incapable and at times inconsistent with protecting the rights and interests of Indigenous Peoples in their resources and intangible assets that have, through time, putatively derived from their origins, their interactions with their environment, their adaptations to the surrounding world, and their cosmology and creation stories.

The discourse about Indigenous rights in the information age is greatly enhanced by the opportunity to implement legal pluralism to demonstrate the capacity for Indigenous law and legal systems, whether complementary or not, to provide essential protections for Indigenous resources and intangible assets. Recognizing that Indigenous law is equivalent to western intellectual property law would evince a serious attempt by the dominant settler societies to work in partnership with Indigenous Peoples to develop a meaningful sui generis system of protection for Indigenous resources and intangible assets.

Many Americans are beginning to feel irrevocably connected to technology. This has created a rift within the American psyche wherein one part cannot imagine a world without such stimulation, immediate gratification, and communication, while the other part longs for tranquility, silence, and solitude. "For many non-Indian peoples, who are increasingly disillusioned with capitalist ethics, materialism, lack of family networks and support, and the general degradation of the environment, Native Americans represent both a romanticized golden past and a hope for a return to a simpler life in the future." It is within this paradigm that Americans are turning to stereotyped utopias of the Native American lifestyles and peoples, where Indians represent a complete rejection of technological advancement in favor of primitivism. It is the belief that the American Indian " was a savage, at just about the stage in civilization the white man was just a few centuries back.' »7 Within this view there is the assumption of a linear moral development model that connects savagery to the beginning of man's time on earth, with modernization and morality as the end result. Therefore, if Americans are unsatisfied with the status of modernity, they can look back and mimic stereotypes of indigenous life as a way to escape technological anxieties, and engage with the traditions of the past.

The notion of "playing Indian" dates back to media representations of westward expansion. However, a new utopian fascination with Native American life began in the 1970s and 1980s. These pivotal decades marked a surge of social awareness and advocacy with the subsequent Chicano, Free Speech, and Feminist movements. It was during this time of self-determination that Native American identity was reformed. A "newfound, but largely romanticized, respect for native peoples' connection with the land and environment emerged in the 1970s in conjunction with the civil rights movement and an increasing awareness of ethnic diversity and alternative lifestyles." This trend was pervasive and focused on Native American "spiritual purity" and relation to the land.?

Related to the derivative work problem, a new issue has emerged since the inclusion of sound recordings in the Copyright Act of 1976: sampling—”the act of taking a portion of one sound recording and reusing it as an instrument or an audio recording in a different song or piece.”66 For example, the modern genres of hip hop and rap both depend heavily on sampling for musical expression.67 Yet, sampling was quickly blocked by the courts. In Grand Upright Music, Ltd. v. Warner Brothers Records, the Southern District of New York held that Biz Markie’s rap song “Alone Again” impermissibly sampled a portion from Gilbert O’Sullivan’s “Alone Again (Naturally).”68 The Court held—devastatingly for genres like rap—that sampling without permission from the original copyright owner constituted blatant copyright infringement.69 Obtaining licenses for every sample presented a significant logistical and financial burden for rap artists.70 And unlike other parts of music copyright, there is no compulsory license for sampling (i.e., reproducing the sound recording); it is instead up to the copyright owner’s discretion whether to license the work or not, and to name the price.71 This forced rap artists to change how they create music or risk copyright sanctions.72 Indeed, the challenges posed by copyright to Black artists have led many to alter their creativity or leave music entirely.73 A third way in which U.S. copyright law has not equally protected racial minorities’ creative works is in requiring a known, recently alive author to gain copyright protection.74 Many centuries old, traditional Indigenous and non-Western songs and arts have communal or unknown creators.75 U.S. copyright law requires a known author and only protects works for a limited period of time, leaving these important but ancient works in the public domain.76 While such works remain unprotected, others can exploit traditional music and arts for their own profit without worrying about copyright infringement claims.77 This facilitates the free commercial repurposing of Indigenous cultural symbols and practices.78 U.S. copyright law defines creative arts as endeavors that are at least partially about making a profit,79 but this commercial approach is at odds with other artistic traditions. For example, Indigenous and non-Western societies around the globe value music as integral to their communities’ culture, and for non-commercial purposes such as medicine.80 The commercial appropriation of Indigenous cultural expression can be especially harmful due to the spiritual or nature of these works. 81 Thus, in these three ways, copyright law’s structure poorly serves living musical traditions.

Recognizing historical context and linking it to the foundational principle that rights-based advocacy is essential to the survival of Indigenous Peoples is the primary democratic means of reconciling the injustices historically and continuously exacted on Indigenous Peoples. As Martin Luther King Jr. so aptly taught: Injustice anywhere is a threat to justice everywhere. Larissa Behrendt seized upon this [*213] principle and gave it practical meaning for Indigenous Peoples when she stated:

By failing to recognize Indigenous ownership and presence, Indigenous property rights are relegated to the status of a hand-out. Native Title is not seen as a property right descended from prior occupation but a welfare measure: Indigenous peoples, when a legitimate property right is recognized, are seen as getting something for nothing.

We are now in a position to revisit the concern I raised at the end of chapter 1 regarding a problematic claim made by Dale Turner in This Is Not a Peace Pipe. Turner’s claim is that if Indigenous peoples want the political and legal relationship between ourselves and the Canadian state to be informed by and reflect our distinct worldviews, then we “will have to engage the state’s legal and political discourses in more effective ways.”79 This form of engagement, I claimed, assumes that the structure of domination that frames Indigenous– state relations in Canada derives its legitimacy and sustenance by excluding Indigenous people and voices from the legal and political institutional/dis- cursive settings within which our rights are determined. Seen from this light, it would indeed appear that “critically undermining colonialism” requires that Indigenous peoples find more effective ways of “participating in the Canadian legal and political practices that determine the meaning of Aboriginal rights.”80

Yet, I would venture to suggest that over the last forty years Indigenous peoples have become incredibly skilled at participating in the Canadian legal and political practices that Turner suggests. In the wake of the 1969 White Paper, these practices emerged as the hegemonic approach to forging change in our political relationship with the Canadian state. We have also seen, however, that our efforts to engage these discursive and institutional spaces to secure recognition of our rights have not only failed, but have instead served to subtly reproduce the forms of racist, sexist, economic, and political configurations of power that we initially sought, through our engagements and negotiations with the state, to challenge. Why has this been the case? Part of the reason has to do with the sheer magnitude of discursive and nondiscursive power we find ourselves up against in our struggles. Subsequently, in our efforts to interpolate the legal and political discourses of the state to secure recognition of our rights to land and self-determination we have too often found ourselves interpellated as subjects of settler-colonial rule.

Indigenous social policy in English-speaking settler states is changing. For the past 40 years, there was broad government consensus around a self-determination approach that aimed to secure Indigenous rights and entitlements, support self-governance and facilitate social reconciliation. But over the last 15 years, this consensus has slowly eroded (Lea et al. 2006; Te Atu O Tu MacDonald and Muldoon 2006; Bargh 2007). Emerging policies are less concerned with rights and relationships, and focus on reforming Indigenous behaviour, intervening in community ‘dysfunction’ and driving economic integration through mainstream employment (Preston 2013; Bargh 2007; I. Watson 2005; MacDonald 2011; Humpage 2005, 2008; Walter 2007; Altman 2007, 2010; Macoun 2011). In Australia this policy shift is particularly marked. Governments have abolished Indigenous representative institutions and reformulated Indigenous welfare provision in line with the ‘responsibility’ and ‘post-welfare’ agendas. But there are smaller corresponding changes in Canada, New Zealand and the US. Increasingly, political leaders and state agencies directly question Indigenous rights institutions (see, for example, the 2008 National Party commitment to abolish Maori seats in the New Zealand parliament; Tahana 2008) and focus policy attention on Indigenous ‘welfare dependency’ and community behaviour (see discussions of the Indigenous impacts of Canadian and US welfare reform, the latter through the Personal Opportunity and Work Opportunity Reconciliation Act of 1996 ; also federal government moves to takeover designated Indian communities for child safety reasons; Brown et al. 2001; Pulkington et al. 2010; Childress 2012). There are new policies emphasising mainstream economic participation and a discursive move from collective rights to individual equality of opportunity (see, for example, the 2012 US HEARTH Act of 2012 [‘Helping Expedite and Advance Responsible Tribal Home Ownership’] and Obama on Native American opportunity 2014). How can we make sense of this shift? In Australia it has been going on for some time, and there are multiple interpretations. Domestic political conditions play an important role, given the impact of a long period of conservative government (Sanders 2006). Some interpret the decline of the self-determination paradigm in terms of that paradigm’s internal contradictions and limitations. For example, they suggest that it was driven by misguided non-Indigenous investment in a particular kind of Indigenous cultural stasis. This meant that it failed to take account of the increasingly porous and transgressed boundaries of the Indigenous and non-Indigenous worlds, and the diverse aspirations of Indigenous people (Lea et al. 2006; Sullivan 2011; Rowse 2012; Austin-Broos 2011). Finally, there is academic focus on changing public ideas, and the impact of prominent Indigenous and non-Indigenous critiques of the existing order. Such critiques came from all political directions – some challenged self-determination’s carefully circumscribed remedialism and others its corrosive welfare economies (see Bradfield 2006; Kowal 2008; Pearson 2000; Sutton 2009; Johns 2010). This book seeks to add another dimension to our understanding, by locating the Indigenous policy transition in the context of broader domestic social policy changes. Of particular significance is the shift from social to neoliberal framings of citizen– state relations. Indigenous self-determination policy was conditioned by post-war social liberalism, and its vision of a benign, multicultural, enfolding state that recognised and secured citizen entitlements. The decline of the self-determination paradigm in Anglophone settler states can be partly understood in terms of the neoliberal critique and reconceptualisation of this social liberal welfare state. From this perspective, the Indigenous policy transformation is not just a move away from a particular approach, but a move to a new liberal paradigm that has been dominant in other social policy fields for 30 years. The four Anglophone settler states are wealthy liberal democracies that each embraced the neoliberalisation agenda, and this goes some way to accounting for the transnational character of the Indigenous policy shift. But while Indigenous policy is part of the domestic social policy world, it overflows it. In the settler colonial context, domestic Indigenous policy is a crucial site of political encounter. I suggest that neoliberal Indigenous policy constitutes a contemporary example of the longer historical imbrication of liberalism and colonialism. Both of these political forces are changing in the contemporary world, and neoliberal domestic policy in settler states forms an important but under-examined site of intersection. I use the case study of Australian policy to reconstruct the interaction between the intellectual projects of neoliberalism and settler colonialism, and argue that ongoing settler colonial hierarchies have been rearticulated through, rather than revived or transcended by, neoliberal frameworks. Importantly, this book does not aim to give a comprehensive account of how particular policies with neoliberal dimensions operate, or to examine the problems and opportunities for Indigenous people enmeshed with such policies (see Altamirano-Jiminez 2013; Te Atu O Tu MacDonald and Muldoon 2006). Both of these are important projects, and do not allow easy moral and political judgements. In their day-to-day operation, policy programs cannot be pre-emptively condemned or celebrated, but must be considered in terms of their concrete interactions with the diverse life projects of individuals and communities. Instead, I build on critical Indigenous theory, social policy scholarship and settler colonial studies to explore the ways in which changing policy logics in Indigenous affairs reflect and drive broader changes in dominant understandings of political relationships in liberal and settler colonial contexts (for others engaged with these themes in Australian scholarship see Howard-Wagner 2010, 2012; Stringer 2007; Lovell 2011; Morris and Lattas 2010; and Moreton-Robinson 2009). Ultimately, I seek to offer a set of analytical tools that might facilitate more detailed empirical articulations, and more open debate, of neoliberal Indigenous policy in its diverse manifestations.

The next section of the paper will, in a brief span, describe the evolution of intellectual property law. The historical focus is on the emergence of intellectual property as part of the positive legal order of states. All societies have had to devise norms for regulating the ownership and use of different kinds of information. Historically, this has been especially true of religious information. One can thus identify customary equivalents of intellectual property. But the western intellectual property tradition is rooted in the idea that intellectual property rights are positive rights created by the state for the benefit of the commonwealth. Within Thomist political theory the validity of positive law was itself to be judged by the axioms of natural law. The norms of positive law had to converge with the divine design which natural law communicated to men. The rules of positive law then met the test of validity, not by being a mirror reflection of some metaphysical counterpart, but rather by whether or not they contributed to the overall divine plan. Conceptually speaking, this allowed someone working within the natural law tradition to recognize the right of a state to modify property rights through the enactment of positive law.

The protection of intellectual property at an international level can roughly be divided into three periods. The first period, the territorial period, is essentially characterized by an absence of international protection. The second, the international period, begins in Europe towards the end of the 19th century with some countries agreeing to the formation of the Paris Convention for the Protection of Industrial Property, 1883 (the Paris Convention) and a similar group agreeing to the Berne Convention for the Protection of Literary and Artistic Works, 1886 (the Berne Convention). The third period, the global period, has its origins in the linkage that the United States of America (the U.S.A) made between trade and intellectual property in the 1980s, a linkage which emerged at a multilateral level in the form of the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (the TRIPS Agreement). The dates of the various conventions do not represent a sharp epochal divide. They do mark a significant change in the evolutionary direction of intellectual property protection.

Each of these chapters challenges the stereotype that Indigenous societies `live in the past' and are unable to shape their culture to adjust to new challenges and situations. Indigenous societies before Contact were both dynamic and flexible, possessing a creative strand that both then and now `repeatedly generates new variants of cultural practices and ...transforms the cultural structure itself' (Layton, page 66; see also Chapters 5 and 7). This raises another core issue underlying much of the discussion in this book: the notion of authenticity. As many others have pointed out, authenticity does not reside in a past that is unchanging, lacking any internal dynamic (Edwards 1997: 63). By proliferating and perpetuating stereotypes of Indigenous peoples as pristine and unchanging, globalisation may become a tool for disempowering Indigenous peoples on the ground that the practices of a contemporary present may not be the same as those of an idealised (and unrealistic) past. The creation of influential images of what constitutes `authentic' Indigeneity can constrain Indigenous peoples in real and material ways, limiting their social, economic, and political capacities. That process is made manifest in the statement by Jimmie Durham (cited by Gough in Chapter 5) that 'none of us feel that we are real Indians ...for the most part we feel guilty, and try to measure up to the white man's definition of ourselves'. On the other hand, authentic representation can also become an important aspect of Indigenous empowerment. In particular, as both Morphy and Layton demonstrate in Chapters 7 and 3 for the northern Australian Yolngu and Alawa people respectively, and as Dransart makes clear in Chapter 8 for the Aymara people of Chile, the notion of authenticity is central to the production of Indigenous art, the negotiation of Indigenous identity through art, and the explicit assertion of rights that can flow from this.