Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Dr. Carol Cravero
This article explores how public procurement can foster traditional knowledge (TK)-sensitive solutions by investigating the role of legal mechanisms such as intellectual property (IP) tools, contractual provisions, and tailored regulatory frameworks in facilitating their inclusion. Drawing on concrete yet limited examples around the world, such as New Zealand’s Progressive Procurement Policy, the article advocates for public procurement frameworks that recognize and incorporate diverse knowledge systems – particularly traditional ones – in advancing sustainable development and promoting cultural diversity.
Public procurement refers to the purchasing activities carried out by governments and public entities, which are essential for fulfilling their mandates. These activities encompass infrastructure development, the acquisition of goods, and the procurement of both physical and intellectual services from the private sector. Beyond being merely a series of economic transactions, public procurement can contribute to advancing broader societal goals.
In particular, governments can use public procurement as a strategic tool to promote sustainable development, fostering a greener and more equitable future. Identified as green or social, sustainable public procurement can contribute to a wide array of sustainable development goals, for example reducing greenhouse gas emissions, minimizing waste and pollution, encouraging sustainable resource use, advancing more equitable society, making progress on gender balance, promoting healthy and reliable food, ensuring fair labor practices, supporting local businesses, and enhancing community well-being through social initiatives.
Under the category of social public procurement, some governments, such as Canada, the US, New Zealand, and Australia, have developed strategies and policies to empower Indigenous communities through equitable and inclusive mechanisms ranging from set-aside contracts to preference schemes, with the aim of directing procurement opportunities toward them. Through set-aside contracts, procuring entities restrict the procurement eligibility criteria to Indigenous businesses only, ensuring that procurement contracts for goods, works or services are awarded exclusively to this category. On the other hand, preference schemes allow all bidders to participate while granting an advantage to certain bidder groups during the bid evaluation stage. In this context, Indigenous businesses may receive additional points, increasing their chances of winning even if their bids are not the lowest-priced or highest-ranked. Additionally, governments may also set annual targets for the number of contracts to be awarded to Indigenous businesses at the national level, as exemplified by New Zealand’s approach with Māori businesses and Canada’s mandatory targets for Indigenous businesses.
Set-aside contracts, preference mechanisms, and targets reflect a political commitment to promoting inclusivity in public procurement. This inclusiveness is typically intended to increase the participation of Indigenous businesses in public procurement, foster supplier diversity, and may even result in a higher number of contracts awarded to them. Ultimately, this type of social procurement aims to enhance the economic well-being of Indigenous businesses – and indirectly that of their families and communities. However, it is uncertain to what extent these interventions align with and genuinely reflect the values underpinning the lives and identities of Indigenous communities.
This issue becomes even more evident when focusing on public procurement that generates direct or indirect impacts on Indigenous communities but is awarded to non-Indigenous bidders. In such scenarios, poorly framed public procurement risks overlooking or inadequately addressing the needs, values, and traditions of Indigenous populations, potentially resulting in unintended consequences that undermine sustainability and cultural preservation.
At the basis of Indigenous identities and values, traditional knowledge reflects the ancestral practices, culture heritage, knowhow, and understanding of life in all its facets, including the local environment where communities have lived for generations. Traditional knowledge is not only a crucial element of the daily lives of Indigenous communities, but it can also offer valuable responses to global issues, such as climate change and food insecurity, reducing challenges in such areas as land management, conservation, and scientific, technological and medical research. Rooted in centuries of lived experience and deep understanding of local ecosystems, traditional knowledge provides sustainable, context-specific and long-term solutions that may complement scientific approaches. For example, Indigenous agricultural practices often promote biodiversity and soil conservation, which may contribute to climate resilience. Similarly, traditional land management techniques can help mitigate the impacts of deforestation and desertification.
Although it is uncommon for procuring entities to integrate or thoroughly consider traditional knowledge throughout the public procurement cycle, the incorporation of Indigenous values in the design and implementation phases is not entirely disregarded worldwide.
For example, the so-called New Zealand’s “Progressive Procurement Policy”, introduced in 2020, aims to align public procurement with Māori values, by combining elements of social procurement, supplier diversity, Indigenous procurement, and wellbeing measures. According to the Progressive Procurement Supplier Guide (2021) released by the Hastings District Council, engaging Māori communities from the very beginning of the procurement process contributes to delivering sustainable outcomes that reflect the principles of care for the Earth Mother (Papatuanuku), creating opportunities for both Māori design influence and Māori guidance on natural resource management principles. The Supplier Guide also identifies a non-exhaustive list of examples illustrating how suppliers can concretely incorporate Māori culture, values and perspectives into public procurement. These include the use of Māori language (Te Reo Māori) and customs, traditions, and protocols that guide Māori society (Tikanga Māori) “in communications, traditional protocols, blessing of sites, Māori design influence, dedicated Māori cultural groups, cultural heritage education”. To this end, suppliers are required to declare how they, along with prime contractors and subcontractors (as applicable), intend to respect Māori culture, values, and perspectives in the execution of procurement contracts.
In such cases, the protection of Māori values is assessed during the evaluation of bids or proposals, and subsequently monitored through the contract terms on the basis of the evidence provided by suppliers during the implementation phase. Evidence may encompass details on where and how Te Reo was used throughout the contract; dates and number of employees provided with training on Te Reo or Māori protocols during the contract; the number of traditional Māori ceremonies performed throughout the project procurement and approximate number of attendees; and evidence on how Māori design was incorporated (if applicable).
Despite the limited literature supporting this claim, it is reasonable to consider that, ideally, Indigenous traditional knowledge can also be protected through the legal tools available within the realm of intellectual property (IP). Indigenous communities may face challenges such as false claims of ownership by non-members, the offensive use of their traditional knowledge; false allegations discrediting their traditional items or services; and the absence of appropriate and just compensation for the commercialization of their traditional knowledge and cultural expressions by third parties. In this context, IP may provide mechanisms to prevent third parties from misusing or exploiting traditional items and cultural expressions without proper recognition of their origin or the authorization of Indigenous communities (defensive protection). Along with the requirement for prior free and informed consent from Indigenous communities – a prerequisite for non-members to access and potentially use traditional knowledge and cultural expressions – IP legal frameworks may also enable Indigenous communities to take action against misconduct and to seek compensation when necessary (positive protection).
Specific IP clauses can be integrated into procurement contracts to ensure that the IP rights of Indigenous communities are respected. These clauses can stipulate that any use of traditional knowledge or cultural expressions in the procurement process must be agreed upon and appropriately compensated. In other instances, confidentiality agreements can be used to protect Indigenous communities from unauthorized use or exploitation of sensitive information.
However, an enduring question that has been debated for years is whether conventional IP mechanisms (e.g., patents, copyrights, geographical indications, and trademarks) are the most suitable tools for effectively safeguarding traditional knowledge, given its distinctive characteristics. In particular, traditional knowledge does not usually refer to new or innovative creations but rather to traditional heritage that has been passed down through several generations, within a timeframe that is not easily determinable and is usually longer than the duration of most IP rights. Additionally, the transmission of traditional knowledge is typically based on interpersonal interactions, memory, and practice, rather than formal documentation. This informality often makes it difficult to record, track, and verify traditional knowledge for legal or commercial purposes. Furthermore, the paradigm of individual (or corporate) ownership does not fit traditional knowledge, given its ancestral, transgenerational and collective nature, except in cases where cultural expressions can be unequivocally attributed to specific individuals within these communities. Another barrier is the cost of applying (and enforcing) conventional IP rights as well as the complex and technical language of applications. Conventional IP mechanisms, such as copyrights and patents, offer protection only for a limited period, after which the protected work enters the public domain. This outcome is not ideal for traditional knowledge, as it is deeply embedded in the identity of the Indigenous communities from which it originates. Its preservation and continued use within these communities are highly valued by their members.
Inclusion in databases or registration can prevent third parties from obtaining patents, copyrights or other IP rights based on traditional knowledge and traditional works that are already documented or registered. For example, the Indian Traditional Knowledge Digital Library (TKDL) was developed to safeguard traditional medical knowledge and prevent its misuse or misappropriation. This database was “conceptualized to overcome the language and format barrier by systematically and scientifically converting and structuring the available contents of the ancient texts […] into five international languages, namely, English, Japanese, French, German and Spanish”. The TKDL is complemented by specific non-disclosure and access agreements with several patent offices, including IP Australia, the Canadian Intellectual Property Office, the Chilean Patent Office, the EU Patent Office, the German Patent Office, the India Patent Office, the Japan Patent Office, the UK Patent and Trademark Office and the US Patent and Trademark Office. In the field of genetic resources, the possibility of establishing information systems (such as databases), in consultation with Indigenous peoples and local communities, was recently established by the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, entered into force on 24 May 2024. The fifteen contracting parties agreed to require patent applicants whose claimed inventions are based on traditional knowledge associated with genetic resources to disclose the Indigenous peoples or local communities, as applicable, that provided the traditional knowledge.
Some governments may disagree on using conventional IP mechanisms, and may prefer adopting sui generis measures or developing a sui generis, specialized legal framework. According to the New Zealand’s IP laws (Acts), registering trademarks or geographical indications or granting patents that would be considered offensive by Māori or contrary to Māori values is prohibited. To this end, Māori Advisory Committees, which are composed of members with a deep understanding of mātauranga Māori and tikanga Māori (Māori cultural protocols), are established to advise on whether an offence or contradiction may occur. Another example is the Panama’s sui generis Law on Special Intellectual Property Regime on Indigenous Communities’ Collective Rights enacted on 26 June 2000 with the objective of protecting traditional dress (Molas) produced by Kuna craftswomen as well as music, dance and major Indigenous handicrafts such as tagua nut carvings, hand-beaded chaquira necklaces and chacara woven bags. Under this Law, authenticity labels can also be issued to guarantee the authenticity of traditional items and thus enabling discerning buyers to pay a fair price for a genuine product.
According to a second school of thought, certain conventional IP tools do not require any adaptation to safeguard the rights of holders of traditional knowledge and cultural expressions. As suggested by WIPO experts, collective and certification marks and geographical indications are particularly “well adapted to the protection and marketing of handicrafts and, at the same time, to the concepts of the collectivity and collective rights that are at the heart of many Indigenous societies”. For example, when the characteristics of traditional products are attributable to their territorial origin, geographical indications can also indirectly play a role in preventing the commercialization of counterfeit products by enforcing the proper use of protected names, ensuring that products bearing those names meet the established criteria, and discouraging the export or import of fake Indigenous goods. On the other hand, collective marks can be used to distinguish the origin or other shared characteristics of traditional items provided by different Indigenous enterprises that use the collective mark under the control of its owner, typically an association of enterprises.
In conclusion, while much of the discourse on sustainable public procurement has centered on its environmental and social dimensions, a crucial yet underexplored aspect appears to be the integration of traditional knowledge. Alongside inclusive and preferential mechanisms, public procurement can serve as a powerful tool for promoting cultural sustainability, in addition to green and social goals, by incorporating traditional knowledge, cultural heritage, and the values of Indigenous communities. To achieve this, procuring entities must be equipped with the knowledge and capacity to identify and systematically apply the appropriate legal mechanisms to ensure that a culturally-based approach is genuinely embraced throughout the procurement process. Whether this can be effectively ensured through IP tools, contractual provisions, or tailored regulatory frameworks requires further study. This article serves as an initial exploration, paving the way for future research on the subject.
* Dr. Carol Cravero is International Public Procurement Law Expert.
