Implementing UNDRIP into Canadian Law: The Institute of Art & Law

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A Question of Restitution

Is a new wind of cultural migration blowing? Around the world, cultural artefacts are being returned from museum collections to their homelands. In particular, a growing socio-political awareness of historic wrongs has focused critical attention on the relationship anthropology and museology share with Indigenous peoples worldwide. As policies and practices on the exhibition of Indigenous cultural and spiritual histories, traditions and belongings are reconsidered, the question of cultural restitution requires fresh consideration.

This article explores how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) might be used to help shape domestic cultural property laws to accommodate restitution claims. Specifically, we will consider the impact of Canada’s efforts to implement the declaration into domestic law on Indigenous cultural rights and national museum policies. This is an important enterprise because, as far as we know, Canada is the only country to attempt to implement the entirety of UNDRIP into its domestic law.

Chief Wilton “Willie” Littlechild, a lawyer and Cree chief who worked on UNDRIP

Indigenous Rights in International Law

The UNDRIP adapts fundamental freedoms and human rights standards to promote the survival, dignity and well-being of Indigenous peoples (art. 43). The result is a rights-based framework for reconciliation, healing and peace based on principles of justice, democracy, non-discrimination and good faith (art. 46). UNDRIP was adopted by the UN General Assembly on 13 September 2007, by a majority of 144 states in favour. Initially, Canada was one of four votes against (along with Australia, New Zealand and the United States of America) but later reversed its position, adopting the declaration without qualification on 10 May 2016.

UNDRIP’s 46 articles address economic, social and cultural rights, as well as civil and political rights. The protection of Indigenous livelihoods is addressed through inter alia the right to self-determination; cultural and territorial rights; and the right to be free from discrimination. The declaration is notable for its collective human rights provisions and the articulation of established individual human rights as they apply to the specific situation of Indigenous peoples. However, as a non-binding declaration, UNDRIP’s impressive provisions lack direct legal force unless incorporated in domestic law.

For our purposes, articles 11 and 12 are of particular interest for their relevance to cultural restitution. The return of cultural material to its place of origin as reparation for a past or ongoing wrong is seen by many as critical to Indigenous efforts to reconstitute cultural identities and spiritual and religious traditions and practices.

Article 11 directly addresses restitution:

  1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
  2. States shall provide redress through effective mechanisms, which may include restitution [emphasis added], developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Restitution is further implied through article 12.

  1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
  2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Indigenous Rights in Canada

The United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act) came into force as federal law in Canada on 21 June 2021. The Act seeks to implement the entirety of UNDRIP into domestic law. It requires the Government inter alia to take measures to ensure the laws of Canada are consistent with UNDRIP (s.5), to prepare and implement an action plan to meet the Declaration’s objectives (s.6) and to develop annual progress reports and submit them to Parliament (s.7).

The UNDRIP Act may thus be seen as a major development in the history of restitution in Canada, ensuring sustained and continued efforts are made to uphold the rights of Indigenous peoples and providing relevant accountability measures. However, substantive and procedural challenges still lie ahead for domestic transposition of articles 11 and 12, as we will see.

The Object of a Restitution Claim

Intending to enhance participation and consultation with Indigenous peoples in recognition of their right to self-determination, reference to the principle of “free, prior and informed consent” in article 11 appears to be ambiguous. It remains unclear which person, or persons, are required to give their consent or what Indigenous processes must be undertaken for the acquisition of Indigenous belongings to be legitimate.

Logically, it may not be necessary that every community member provide consent, but rather that consent be sought and obtained from representative institutions in accordance with Indigenous customary laws, practices and procedures for Indigenous engagement and consent. Further clarification of the requirements of “free, prior and informed consent” would help to avoid institutional attempts to retrospectively legitimise the taking of Indigenous belongings.

Introducing mechanisms and criteria for the identification of Indigenous “cultural traditions and customs” and “cultural, intellectual and spiritual property” falling within article 11’s scope would also be advisable, in order to distinguish legally protected practices and belongings from the objects and pursuits of ordinary life. The effect of limitation periods and historic legislative prohibitions of Indigenous cultural practices on article 11 or 12 claims, such as the 1884 Potlatch Ban, require further elaboration. Left unclear, such ambiguities could delay effective recourses for cultural property protections for Indigenous communities.

Authentication and the Onus of Proof

Redress measures can only be considered after Indigenous peoples have identified the belongings that are, or were traditionally, ‘their[s]’. In the face of possible competing claims to contentious objects between communities or a statutory vesting or documented transfer of ownership to a museum or institution, disputed claims of continuing or sustained ownership by Indigenous peoples to ‘their’ items will require some form of authentication.

Yet, UNDRIP provides little direction as to how such claims are to be validated, for example whether self-identification would be definitive, or whether a formal claims process would be required. Whilst the former may lead to a proliferation of conflicting historical claims, the latter raises evidentiary complications akin to appraising Aboriginal title in the land claims process. Indigenous peoples may be called upon to prove ownership of ‘[p]roperty’, ‘objects’ and ‘artefacts’, irrespective of the particular relationship some Indigenous peoples share with belongings regarded as kin or living entities which cannot be owned.

Effective implementation of UNDRIP thus raises important questions about how Canada’s domestic law and courts, grounded in Western legal principles, should take account of Indigenous legal orders in evidence, such as whether testimonies of oral history are sufficient to establish proof of ownership to a sacred belonging. Canada should seek to establish dispute settlement procedures and authentication practices which take account of Indigenous laws, traditions and customs, to ensure that the domestic transposition of UNDRIP rights supports “harmonious and co-operative relations” between state institutions and Indigenous peoples.

 Parties to a Restitution Claim

 As an identified class of beneficiaries of UNDRIP rights, the term ‘Indigenous Peoples’ has specific application. Not all Indigenous communities who purport to exercise, for example, the right to self-determination under article 3 of UNDRIP are entitled to have their claim recognised by the state government. Yet, UNDRIP provides no definition of ‘Indigenous Peoples’, creating uncertainty as to which Indigenous collectives benefit from international cultural protections.

 Section 2(1) of the UNDRIP Act seeks to resolve this ambiguity: “Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982.” Whilst s.2 provides textual clarity, Indigenous status eligibility in Canada remains a practically complex process determined by the federal government in accordance with the Indian Act. Even if recognised First Nations bands qualify for UNDRIP enforcement, considerable ambiguity remains about the status of non-recognised bands and those Indigenous collectives which have been denied band status.

Attempts to rely on articles 11 and 12 may thus face tactical challenges to a community’s status as an ‘Indigenous peoples’, extending opportunities for settler society control over Indigenous rights and identity, and delaying the enforcement of UNDRIP rights until identification procedures are satisfied.

Limitations of Federal Legislation

 Critical also to the effective implementation of articles 11 and 12 is ensuring legislation is enacted across all provinces. The UNDRIP Act focuses obligations on the federal Government in Canada and nothing in the legislation prevents or requires provincial implementation of the Declaration. Nationwide implementation is arguably a critical step to ensure uniformity across provincial approaches to Indigenous cultural rights. Otherwise, UNDRIP’s restitutionary scope may be limited to belongings held under federal jurisdiction, as property held by provincial governments is not necessarily protected under articles 11 and 12. A geographical lottery of rights for Indigenous peoples could therefore arise across Canada emanating from provincial attitudes towards restitution policies and cultural property obligations.

 Moving Forward

 Transposing articles 11 and 12 into Canadian law is a worthy task. Granting enforceable legal effect to UNDRIP’s provisions could hugely advance the recognition and protection of Indigenous cultural rights in Canada. The UNDRIP Act may help to bring renewed legitimacy to the exhibition of Indigenous livelihoods and histories by clarifying how cultural property is validly obtained and displayed. However, if the challenges of implementing UNDRIP within the Canadian Indigenous rights regime are to be effectively resolved, Canada’s cultural property law ought to take account of Indigenous perspectives.

About Olivia Shaw

Olivia Shaw is a graduate of Queen’s University, Belfast with First Class Honours in Law and is currently a Masters student at Oxford University. She has a particular interest in restitution matters and the role that law plays in successful curatorial conversations.