Canadian copyright laws

Following the existing intellectual property laws of Canada is usually not enough when referring to Indigenous Peoples and avoiding misappropriation.

Understand customary laws

“Customary laws that are in effect in Indigenous communities dictate specific rights, responsibilities, and cultural obligations. These regulate what can and cannot be used, by whom, and under what circumstances. In other words, it is not that Indigenous cultural heritage isn’t protected at all; rather, the problem is that many people are unaware of, or choose to ignore, these rules.”

Foundational Canadian legal rights

There are legal rights that help protect Indigenous Traditional Knowledges:

• Section 35 of the Constitution Act of Canada
• The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted by UNESCO
• UNDRIP [PDF], Article 31(1)

Constitution Act, section 35

Section 35 of the Canadian Constitution Act, 1982 can be used to protect Indigenous cultural heritage rights. This would allow for the protection of property for the next few millennia.

Section 35 of the Constitution Act states:

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal rights, but does not define them. What “Aboriginal rights” includes has been the topic of much debate and discussion, and they have been defined over time through Supreme Court of Canada cases such as R. v. Calder and R. v. Sparrow. Aboriginal rights have been interpreted to include a range of cultural, social, political, and economic rights, including the right to land, as well as to fish, to hunt, to practice one’s own culture, and to establish Treaties.

Section 35 also recognizes that Aboriginal rights are “existing.” The Supreme Court of Canada has stated that this means that any Aboriginal rights that had been extinguished by treaty or other legal processes prior to 1982 no longer existed and therefore are not protected under the Constitution. The significance of the term “existing” was further clarified in the case of R. v. Sparrow.

Section 35(1) applies to rights in existence when the Constitution Act, 1982 came into effect; it does not revive extinguished rights. An existing Aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982. The phrase “existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time.

The Constitution Act recognizes Indian, Inuit, and Métis as all Aboriginals with existing rights, and that recognition has been further defined for each group (as, for instance, for Métis in a decision referred to in the article linked in this sentence). Aboriginal rights in general are based on the continued occupation of lands by Aboriginal peoples since before European settlement.

Section 35 falls outside of the Charter of Rights and Freedoms, and it begins Part II of the constitution. This allows section 35 to be exempt from the “notwithstanding clause” that applies to the Charter. In other words, the federal government cannot override Aboriginal rights.

It  is important to understand that section 35 recognizes Indigenous rights, but did not create them—Indigenous rights have existed since before section 35.

The Constitution Act refers to Indigenous peoples as “aboriginals,” as that was the term used at the time of creation of the Act.

What section 35 doesn’t do

The Constitution Act, 1982 does not define Indigenous rights under section 35, as they vary from group to group depending on the customs, practices, and traditions that have formed part of their distinctive cultures. Indigenous rights can include:

• Indigenous title (ownership rights to land)
• Rights to occupy and use lands and resources, such as hunting and fishing rights
• Self-government rights
• Cultural and social rights

UNESCO

In an attempt to provide some protection for cultures at risk from the negative impacts of globalization, UNESCO (the United Nations Educational, Scientific and Cultural Organization) and the majority of United Nations member states have put into force the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which explicitly outlines, defines, and sets forth in the articles the measures and expectations of nation states to help protect cultural groups.

UNESCO states:

• Work in collaborate to advance the knowledge and understanding of Indigenous Peoples
• Recommend international agreements to promote reconciliation
• Give Indigenous  ways of knowing and being an equal space in mainstream education
• Maintain and advance Indigenous Knowledges

UNDRIP Article 31(1)

Indigenous cultural property is recognized and upheld by UNDRIP under Article 31(1).

The article reads:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

In essence, this article recognizes the importance of safeguarding and promoting the rich cultural heritage and practices of Indigenous peoples worldwide. It emphasizes their right to preserve and pass down Indigenous Traditional Knowledges, artistic expressions, and scientific contributions.

Recap other key documents

When creating and curating with Indigenous Peoples, it important to have an understanding of the governance protocols used by that Nation. Below are a list of governance protocols used by First Nations, Inuit, and Métis Peoples:

• Truth and Reconciliation Commission (TRC)
• First Nations principles of OCAP®
• Manitoba Métis principles of OCAS /Principles of Ethical Métis Research
• Inuit Qaujimajatuqangit/National Inuit Strategy on Research
• CARE Principles

To learn more, please refer to Module 1: Ethical and Legal Considerations.