Abstract

The present paper examines conventional wisdom on the subject of the justification of indigenous peoples' intellectual property rights, and offers an alternative approach. The examination is achieved by a critique of two such conventional approaches in terms of the strength of each argument employed, and in terms of the efficacy of each in the roles allotted to them. The first such argument is Stenson and Gray's application of Kymlicka's individualist theory advocating national minority autonomy. The second argument is the labour entitlement theory of property acquisition, as advanced by Locke and Nozick. These theories only explain how a liberal social contract theorist would construct justifications from the outside. That this is inadequate is shown by reference to a case study involving indigenous claims against Australian law based on indigenous customary law. There, appeals are not made to abstract theory, but to tribal imperative. This observation finds sympathetic support in a reading of Hegel's philosophy of history. Hegel finds spirit in all peoples at all times. To Hegel, non-state peoples are developmentally prior to states; this means that states have developed dialectically from such peoples and cannot therefore deny them without self-contradiction. This places an onus upon a state that has subsumed an indigenous people to accommodate its laws and ways.