Table of Contents

International Trade in Indigenous Cultural Heritage

International Trade in Indigenous Cultural Heritage

Legal and Policy Issues

Edited by Christoph Beat Graber, Karolina Kuprecht and Jessica Christine Lai

The book is unique in taking a multi-faceted approach to cultural heritage, incorporating discussion on tangible and intangible, moveable and immoveable elements of indigenous peoples’ culture. From the perspectives of several international legal fields, including trade law, intellectual property, cultural property, cultural heritage law and human rights, the book explores how indigenous peoples could be empowered to participate more actively in the trade of their cultural heritage without being compelled to renounce important traditional values. The national and local legal realities in four jurisdictions (New Zealand, Australia, United States and Canada) lay the scene for a wide-ranging analysis of various possibilities and proposals on how this might be achieved.

Chapter 14: Ownership and trade of aboriginal cultural heritage in Canada

Catherine Bell

Subjects: law - academic, cultural heritage and art law, intellectual property law

Extract

Ownership and trade of indigenous cultural heritage in Canada is shaped by many legal influences, including Canadian common law, legislation, indigenous legal orders, constitutional law and international law. Nevertheless, it continues to be regulated in national law primarily through federal, territorial and provincial property legislation. Subject to a few notable exceptions, much of this legislation was enacted before recognition and protection of ‘existing aboriginal and treaty rights of the aboriginal peoples of Canada’ in section 35 (s. 35) of the Constitution Act 1982. Canadian legal scholars and the 1996 Royal Commission on Aboriginal Peoples (RCAP) argue that this section and principles for its interpretation support the existence of constitutional aboriginal political, property and jurisdictional rights over cultural heritage ‘integral’ to ‘the life and welfare of a particular Aboriginal people, its culture and identity’. Aboriginal peoples have also increased control over some forms of their cultural heritage through negotiation of modern treaties (post-1973) and land claim agreements (northern Canada), control over access to reserve and settlement land, and changes to institutional and government departmental policies and ethical codes of conduct.

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