Customary Law

Given the power of Indigenous knowledge, its use is not taken lightly under Indigenous regulations, or "customary law." In his doctoral dissertation, Greg Young-Ing defines customary law as "The ancient legal systems developed by Indigenous nations to regulate Indigenous societies" (Young-Ing, 2006, p. 1). Young-Ing describes some of the ways customary law regulates these elements:

• "Certain plant harvesting, songs, dances, stories and dramatic performances can only be performed/recited and are owned by certain individuals, families or clan members in certain settings and/or certain seasons and/or for certain Indigenous internal cultural reasons;
• Crests, motifs, designs and symbols, and herbal and medicinal techniques are owned by certain individuals, families or clan members; [ . . . ]
• Art forms and techniques, and herbal and medicinal techniques, can not be practiced, and/or certain motifs can not be used, until the emerging trainee has apprenticed under a master of the technique" (Young-Ing, 2006, p. 32).
  

Although these rules already exist to govern the appropriate use of symbols, art forms, and medicinal techniques, it is another matter entirely to expect non-Indigenous peoples to cohere to these values. This is not a new phenomenon, particulary as regards Indigenous land claims. Richard Overstall points out that "[i]n both treaty agreements and lower court decisions on [title] consultation, the Canadian  legal system has made a concerted effort to push Aboriginal people away from their own governance structures and toward Western models" (Overstall, 2004, p. 197).

When cultural misappropriation occurs, Aboriginal people are often forced to look to Western law for remedy. The nearest fit is frequently copyright (Shand, 2000).