THE ADVOCATE 719
VOL. 79 PART 5 SEPTEMBER 2021
UVIC LAW
FACULTY NEWS
By Robert G. Howell*
CULTURAL PROPERTY AND THE IMPLEMENTATION OF THE UNITED NATIONS
DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (“UNDRIP”)
The United Nations Declaration on the Rights of Indigenous Peoples
(“UNDRIP”) was adopted by the General Assembly on September 13, 2007.1
While resolutions of the United Nations Security Council are binding on
member states,2 General Assembly resolutions are not. They simply articulate
the will of members of the assembly passed by a two-thirds majority of
the members present and voting.3 UNDRIP has, however, just been legislatively
implemented by Parliament4 and earlier by the B.C. Legislative
Assembly.5 These implementing measures provide the necessary focus for
enforcement of UNDRIP federally and in British Columbia.
While most political debate has focused largely on resource development,
6 UNDRIP is of considerable significance in the development of legal
relief for an unconsented taking or utilizing of features integral to an Indigenous
society’s cultural identity. Cultural items may comprise land (for
example, a site exclusively possessed through a cultural or spiritual ceremony
or event), chattels or artifacts, or intangible items of knowledge or
expression in a manner similar to categories of intellectual property within
federal and provincial law.
Implementing legislation federally7 and provincially8 is not to be construed
as abrogating or derogating from any rights recognized and affirmed
by s. 35 of the Constitution Act, 1982.9 Section 35, of course, does not create
rights, but “recognizes and affirms” Aboriginal rights existing in 1982.
* Robert G. Howell is a professor at the UVic Faculty of Law. This short piece is focused on key highlights of UNDRIP and
cultural protection and is aimed at a general readership. Professor Howell is in the midst of more comprehensive scholarship
as well as the finalization of course materials for a new law course to be offered in spring 2022. Funding sources and
UVic law student collaboration and research assistance will be identified and acknowledged in these larger endeavours.
However, specifically with respect to UNDRIP, he acknowledges Joannie Fu, UVic Law Class of 2021.