Legal and Policy Issues
Edited by Christoph Beat Graber, Karolina Kuprecht and Jessica Christine Lai
Chapter 14: Ownership and trade of aboriginal cultural heritage in Canada
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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