Indigenous Law Bulletin
by Alice Diver
My power is carried in my House's histories, songs, dances and crests. It is recreated at the Feast when the histories are told, the songs and dances are performed, and the crests are displayed. With the wealth that comes from respectful use of the territory, the House feeds the name of the Chief in the Feast Hall. In this way, the law, the Chief, the territory, and the Feast become one.
When indigenous cultural property rights are defined by western concepts of ‘property ownership’, they risk the fate of indigenous land rights. Where entire continents were lost under terra nullius, indigenous peoples’ descendants now face a ‘cultural genocide’ with ‘discovered’ culture appropriated to benefit the ‘greater good’. Human rights issues resurface; would cultural property rights be better protected via segregation or ‘integration’ into majority cultures? Should rights be framed as collective ‘group’ claims or as ‘matters for individuals’? If so, might cultural property be capable of ‘self-determination’? If ‘cultural secession’ occurs, demands for defined territories become paramount. Human Rights lawyers may have to revise emerging customary norms given recent cases highlighting western judicial bias, where European definitions of ‘land use’ disregard the nomadic, ‘hunter-gatherer’ nature of many indigenous populations, Anglo-western preoccupation with ‘alienability’ conflicts with the ‘perpetual’ nature of indigenous ownership and the ‘individualistic orientation of Anglophone countries’ ignores the communal, ‘caretaker’ nature of aboriginal ownership.
Although Mabo appeared to extinguish terra nullius, its legacy lingers on. This paper examines whether legal ‘blemishes of the past ... translate into current inequities’.
The ‘evolving character’ of international jurisprudence initially sought to justify colonialism’s ‘brutal settlement patterns’. Early defenders of aboriginal rights highlighted the ‘essential humanity of the Indians’ and ‘condemned’ colonial abuses, but nevertheless made ‘integrationist assumption(s)’ that colonisation was ‘an incessant trend, heralding a new era of progress and prosperity’. The concept of ‘noble primitive, close to nature’, needing fiduciary protection to use property correctly, runs through nineteenth-century American jurisprudence and treaties.
These ‘constrained claims and kinds of remedies’ displaced the ‘personal and cultural identity’ of native people, who were forced to ‘adopt a view of themselves ... that fits with the rights-conferring political machinery of the state’. With cultural property rights, loss of identity is pronounced, and the consequences profound; ‘what was fluid, changeable and non-material, becomes ... a predictable objective of a colonial state.’ Just as land was state-ceded in return for rights to ‘reserve’ some of it, the ‘contrivance of sameness’ now seems necessary to protect cultural rights.
Assimilationist government policies, despite ‘politically correct language of participation and citizenship,’ frequently ‘deny difference’; underlying colonialism ensures that native populations remain ‘haphazard aggregations’ rather than distinct, rights-bearing state ‘beneficiaries’.
Delgamuukw was initially ‘heralded as a great move forward in clarifying the nature and scope of Aboriginal title’. Lamer CJ established Aboriginal title as sui generis, inalienable (except to State or Crown); merging fee simple and usufructuary claims and arising from pre-colonial occupation. Important precedents arise concerning indigenous ownership, with significance for cultural property rights, namely that such title is held collectively, rather than ‘by any one member of an Aboriginal Nation’. McEachern J’s findings on oral evidence were reversed;
Thus, when the Gitksan presented their adaawk, and the Wet'suwet'en presented their kungax, these must be thought of as Aboriginal common law, and constitute acceptable evidence.
However, Lamer CJ’s refusal to condemn bias against anthropological evidence limits cultural rights claims. Whilst acknowledging differences between western and Indigenous concepts, ‘tests of ownership’ reinforce colonial land use ideas (eg ‘occupation’) and ignore Indigenous customs on Aboriginal title. By refining his Van der Peet cultural continuity test to include western presumptions (‘if the land is occupied ... it is integral to the distinctive culture’) he recalls European title requirements. ‘Links with the past’ (‘evidence on the ground... houses, enclosed fields or regular exploitation of resources’) echo ‘adverse possession’, whilst ‘exclusivity’ contradicts previous dicta on Indigenous ownership’s communal nature and forgets that ‘the source... of the rights, ... the burden of proof ... all interface with concepts of culture’.
As McLaughlin J (dissenting) noted:
Aboriginal rights find their source not in a magic moment of European contact, but in the ... customs of the Aboriginal people.
This ‘frozen in time’ nature of ‘Delgamuukw-defined’ title is apparent in relation to cultural property. In Kitkatla Band v British Columbia (Minister of Small Business Tourism and Culture), culturally modified trees indicated Aboriginal title, entitling Indigenous representatives to ‘consultation’. The quashing of interim injunctions, however, permitted harvesting until trial. Although the Kitkatla Band argued that irreparable harm had occurred, their claims were dismissed because ‘others in the Tsimshain Nation’ did not agree. Symbolic importance was diluted by the ‘degree of attachment’ principle, indicating western standards of cultural importance rather than native. By Supreme Court stage, a third of the trees were destroyed; belated orders to preserve suggest damage limitation.
Stereotyping has been noted by Borrows who highlights that dicta are frequently ‘steeped in questionable North American cultural images.’ In R v Seward Thackray J relied on western assumptions about ‘pre-contact’ custom to preclude modern practices from legal protection (eg Salish night hunting for ceremonial deer meat). Drawing on ‘undue hardship’ rather than on social importance, he demonstrated ‘the distance between the discourses of people from two societies.’
In R v Sundown however, the building of a log cabin on Crown land (enabling the defendant to exercise ‘Treaty-protected’ hunting easements) was held to not amount to illegal proprietary interests. Though ‘reasonably incidental’ to ‘traditional expeditionary style’, it was labelled a mere ‘Treaty right,’ which, ‘like aboriginal rights, must not be interpreted as if they were common law property rights’.
By contrast, in Osoyoos Indian Band v Oliver (Town), the court made some useful observations. Whilst common law ‘may not be helpful in the context of aboriginal interests’, cultural components demand recognition, given ‘the nature of the relationship between an aboriginal community and ... unique value in the land itself.’ The cultural component revives debate over state ‘fiduciary duty’ and has implications for property rights. Following Delgamuukw’s narrow interpretation, equitable obligations could prove key. Daes suggested classing such rights as ‘heritage’ when seeking international legal protection. Whether the current systems of protection enable this is unclear and warrants discussion.
The vulnerability of indigenous cultural property rights has been linked to governments’ ‘aggressive policies of cultural assimilation.’ Referring collectively to ‘heritage’, Daes summarised colonised peoples as being ‘in succession, despoiled of their lands, sciences, ideas, arts and cultures.’ Her observations underpin the argument that capitalist jurisprudence provides little protection. Whereas collective indigenous ‘ownership’ is a revered concept, western ‘title’ draws on egocentric claims of economic reward and secular endeavour; ancient relationships between land and inhabitants promote spiritual rather than financial benefit. Likewise, ‘alienability’ is incomprehensible to many indigenous societies. Where rights exist in perpetuity, they cannot be ‘signed away’. If objects or intangible items (eg songs, symbols, dances) are removed from their context they often cease to have meaning. If appropriated or disrespected, the sacred nature is often lost. Common law damages (or ‘fair compensation’) are inadequate in the face of cultural ‘genocide’.
In relation to ‘intellectual property’ western definitions of incorporeal ‘rights’ reinforce these difficulties. Where western laws ‘protect ... individual autonomy’ and distinguish between scientific and artistic effort, indigenous customs ‘regard ... products of the human mind and heart as interrelated ... flowing from the same source’. Art is often inseparable from science. As Githiaga noted, art may be ‘precious, not as an object, but for its life-sustaining qualities. ... Signs, symbols and codes may all be information necessary for survival. He describes indigenous art and science as ‘folklore’, a ‘living phenomenon’, transmitted via ‘care-taking’ generations, usually of anonymous, unfixed form and thus outside copyright protection.
‘Integrity violations’ repeat the injustice. ‘Denigration of ... cultures through use of heritage in culturally inappropriate ways’ occurred in Mohawk Bands v Glenbow-Alberta Institution where a sacred False Face Mask was placed on permanent exhibition. Injunction was denied as no ‘irreparable harm’ resulted for Mohawk culture. The fact that ‘such creations were not developed for public recognition or economic gain, but ... as icons in the preservation of cultural heritage’ seems to have escaped the court’s notice. Likewise, if links between objects and culture inform ‘definition(s) of ownership in indigenous culture’, then, indigenous designs can ‘represent ... title deeds of ... ownership’. Judges should regard intangible and physical property as ‘so intimately linked that no meaningful distinction can be made between the two.’ The closest western legal systems come to acknowledging this is via equitable remedies. Such obligations, whilst imperfect, could provide solutions where ‘unconscionable’ acts have given rise to constructive trusts. Though unlikely to apply the doctrines to physical property, judges could invoke them for cultural property.
Common law tends to ‘fix’ indigenous rights by training aboriginal ‘heritage’ around western ‘rights’ and ‘freedoms’ rather than regarding them as sacred ‘matters of privilege and responsibility’. Redrafting heritage as ‘spiritual’ property, may force judiciaries to deal with the issues equitably. Whereas ‘cultural’ rights’ are prone to ‘euro-centric’ bias, ‘spiritual’ rights might fare better as expressions of religious freedom. It would be difficult for judges to dismiss misappropriation as ‘harmless’ or justified by state sovereignty.
Reclassifying indigenous cultural property as ‘spiritual’ may prove useful in elevating the rights to ‘first generation, civil, political’ rights, making the ‘non-intervention norm’ of international law difficult to justify. Likewise, the ‘fundamental clash of world views’ could lessen by focusing on the spiritual or religious aspects of such rights. There is international authority for such a proposition, including, ironically, the integrationist (but subsequently amended) ILO Convention 107, which highlighted ‘cultural and religious values’ as exempt from domestic assimilation measures. It stressed recognition of ‘right of ownership, collective or individual ... over the lands.’
If, however, as Heintz noted, Indigenous peoples ‘have ... limited capacity as subjects of international law, the role of equitable domestic jurisprudence cannot be underestimated. Mabo could prove useful in ‘spiritual property’ cases; the ‘relevant nexus’ rule may apply, linking Indigenous peoples to their rights, in perpetuity. Religious freedom may be more acceptable for ‘self-determination’ than territorial claims. Given the decade-long focus on indigenous rights, and growing international awareness of the ‘gradual destruction of the material and spiritual basis for the maintenance of indigenous societies’ indigenous cultural property rights may yet be seen as the ‘fourth generation’ of human rights. It would be ironic if this were achieved by regarding them as ‘religious freedom’ rights, given the role religion initially played in justifying colonialism. This time however, the ‘Just War’, would involve ‘no cessions, consent, military conquests, Hobbesian covenants or social contracts’; merely an ‘act of international justice’ in recognising the unique nature of indigenous cultural property rights.
Alice Diver is a lecturer in land law and equity at the University of Ulster (Magee campus) in Northern Ireland. Alice is Canadian, descendent of the Newfoundland MicMac tribe.
 Delgamuukw  1 CNLR.
 Lovelace v Canada No R 6/24 UN.
 See Yumbulul v Reserve Bank of Australia Ltd  FCA 332; (1991) 21 IPR 481; Bulun Bulun v R & T Textiles Pty Ltd 1998.
 H Hannum, ‘The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples and the Right to Autonomy’ in Lutz et al (eds) New Directions in Human Rights (1990).
 Mabo v Queensland (1992) 175 CLR 1.
 S J Anaya, Indigenous Peoples in International Law (2001).
 Bartolome de las Casas (1474-1566) and Francesco de Vitoria (1486-1547).
 Anaya, above n6.
 C Samson, ‘Rights as the Reward for Simulated Cultural Sameness: The Unni in the Canadian Colonial Context’ in Cowan et al (eds) Culture and Rights – Anthropological Perspectives (1997).
 A Heraclides, The Self-Determination of Minorities in International Politics (1991).
 S E Merry, ‘Changing Rights, Changing Culture’ in R A Wilson (ed), Human Rights, Culture and Context- Anthropological Perspectives (1997).
 See ‘Marshall decisions’ discussed in Anaya, above n6.
 Rupert’s Land Treaty (Canada) 1868.
 Merry, above n12.
 Samson, above n10.
 Ibid 228.
 Ibid 238.
 Ibid 242.
 D Johnston, ‘Native Rights as Collective Rights: A Question of Group Self-Preservation’ in W Kymlicka (ed), The Rights of Minority Cultures (1995) 179-20.
  1 CNLR.
 B Thom ‘Aboriginal Rights and Title in Canada after Delgamuukw’, (2001) Native Studies Review 14.
 Quasi-equitable collective rights.
 Delgamuukw  1 CNLR, 59 (Lamer CJ).
 Thom, above n23.
 ‘Occupancy’ at contact, and ‘continuity’.
  4 CNLR.
 Delgamuukw  1 CNLR, 69 (Lamer CJ).
 Thom, above n23.
 Van der Peet  4 CNLR, 264.
 2002 2 SCR 146.
 Ibid 46, (Donald J).
 John Borrows, ‘Frozen Rights in Canada: Constitutional Interpretation and the Trickster’ (1998) American Indian Law Review 22(1):37-64.
  3 CNLR 237, 254.
 Thom, above n23.
 (1999) 1 SCR 393.
 Ibid 10 (Cory J).
 2001 3 SCR 746.
 Ibid, (McLachlin CJ).
 A E Daes, Protection of the Heritage of Indigenous People (1997).
 Ibid 3.
 Ibid 89.
 See Mayagna (sumo) Awas Tingni Community v The Republic of Nicaragua (2001) Inter-Am CHR Judgment of 31 August 2001.
 Daes, above n45, 84-86.
 J A Fuentes ‘Protecting the Rights of Indigenous Cultures under the Current Intellectual Property System: Is it a Good Idea?’ (2003) JMLS Review of Intellectual Property Law 3.
 Daes, above n45, ibid.
 J Githiaga, ‘Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge’ (1998) Murdoch University Electronic Journal of Law 5, 2.
 See S McCausland, ‘Protecting Communal Interests in Indigenous Artworks after the Bulun Bulun Case’  IndigLawB 51; (1999) 4(22) Indigenous Law Bulletin 4.
 Githiaga, above n53, ibid.
 1988 3 CNLR 70 Alta QB.
 Fuentes, above n51, 121.
 Githiaga, above n53, 13.
 K Puri, ‘Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action’ (1995) Intellectual Property Journal 293, 310.
 Githiaga, above n53, 35.
 Blueberry River Indian Band v Canada (1995) 4 SCR 344.
 Githiaga, above n53, 109.
 See Foster v Mountford (1976) 29 FLR 233.
 T Hadden, ‘The Pendulum Theory of Individual, Communal and Minority Rights’ (2000) Critical Review of International Social and Political Philosophy 77-90, 80.
 Heraclides, above n11, 26.
 Githiaga, above n53, 100.
 International Labor Organisation Convention 107, Article 2.
 H J Heintz, ‘The Protection of Indigenous Peoples under the ILO Convention’ in Bothe et al (eds) Amazonia And Siberia; Legal Aspects Of The Preservation Of The Environment And Development In The Last Open Spaces (1993).
 If significant connection is established, title exists.
 Heintz, above n68, 311.
 Merry, above n12, 45.
 Samson, above n10, 242.
 Heraclides, above n11, 22.