Law & Justice

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  • (2023) Tualima, Saeumalo Hai-Yuean
    This thesis uses a Talanoa Research Methodology (TRM) approach to explore the concepts of traditional knowledge, knowledge, custom and customary law in Samoa. TRM uses the principles of fa’asamoa to guide and conduct interviews where participants are collaborators, co-developing the research agenda. Open-ended questions focused on centring participant perspectives to reflect their authentic voices, understand their life experience and recommendations for future directions for reform. Interviews were conducted with Samoan government officers, cultural practitioners, and village individuals across 2019 to 2021. Participants were asked to identify traditional knowledge or knowledge, intellectual property, custom and customary law from their perspective, allowing the terms and examples to demonstrate connections between where knowledge is situated, and how life is lived and practiced, and its day-to-day regulation. A TRM approach was chosen to help make more visible how knowledge is regulated in a pluralist post-colonial legal order. In Samoa, customary law is not inferior or superior to the legislative framework of the state. Customary law plays a crucial role in village governance and regulates how knowledge operates in society. This is not well understood in the international literature about TK and intellectual property and this creates problems in implementing treaty conventions such as the World Trade Organization Agreement on Trade-Related Rights of Intellectual Property Rights 1994 (TRIPs), Convention of Biological Diversity 1992 (CBD), Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from the Utilization to the Convention of Biological Diversity 2010 (Nagoya Protocol), and the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage 2003 (Convention on ICH). Participants reflected on their experiences with current regulatory frameworks, including the role of the village fono. Discussion includes reflections on the value and limitations of international legal frameworks and externally funded development initiatives. Recommendations are canvassed for improvement of current regulatory frameworks and alternative mechanisms that could provide practical avenues for the future development for the protection of knowledge or traditional knowledge in Samoa. Recommendations also have potential relevance for other Pacific Islands. This research has wider relevance beyond the Pacific, providing critical insights into the significance of international discussions about traditional knowledge, access and benefit sharing, and other attempts to decolonise intellectual property. Understanding the value of research informed by TRM is particularly relevant to outside researchers, consultants and international agencies who work in the Pacific and are interested in progressing TK and intellectual property reform agendas in ways that benefit and support the local community.