The public domain is intrinsically colonial. Reforming IP law is preferable.

The Europeans assumed that whatever intergenerational Indigenous knowledges and intellectual property laws and rituals they "discovered" were not legally protected and were part of the audacious metaphor of "public domain" (publicijuris) and could be freely accessed, used, or taken. 16 The Eurocentric public domain determined that these Indigenous peoples' knowledge and folklore were not new, original, or individual. Instead, the public domain characterized these knowledges as ancient natural traditions. The irony of this rejection of protecting these ancient knowledges is the source of the Eurocentric idea of the public domain, and intellectual property laws are based on nature. 17 Only what the Europeans extract from nature is legally protected--the Indigenous peoples' extraction from nature is not legally protected. Their knowledges are assigned to the public domain, which is open to exploitation and appropriation by anyone.18

These Eurocentric fictions in Canada and beyond have become obstacles to the legal protection of Indigenous peoples' knowledge and creative manifestations. In intellectual property laws, these fictions continue to serve as an implicit assumption in the Eurocentric metaphor of the public domain 19 or the common heritage of humanity.20 Intellectual property law seeks to protect the selected products of original thought and the physical manifestations or expressions of Eurocentric knowledge and ideas by assigning and enforcing them as legal rights. These Eurocentric concepts and categories continue to raise difficult questions about protecting Indigenous knowledge at the intersection with European innovation policy and knowledge governance.

While Indigenous knowledge is one of the constitutionally protected manifestations of Aboriginal and treaty rights in the constitution of Canada, 2 1 the concept of Canadian public domains still classifies Indigenous peoples' knowledge as a body of information available for anyone to access and use freely.22 The Canadian public domains reconstruct and extend a historically prejudicial Eurocentric view of Indigenous peoples' knowledge. It ignores that their knowledge systems are protected by the constitutionalized Indigenous domain and Indigenous laws that are distinct from but equal to the Eurocentric public domains.

This article will briefly address the concept of the Canadian public domains and then introduce the Indigenous domain concept. I will then discuss the need to establish the Indigenous domain's constitutional supremacy that requires Canadian intellectual property law to be reformed to be made consistent--without any domain being dominant. I conclude with some modest suggestions.