720 THE ADVOCATE
VOL. 79 PART 5 SEPTEMBER 2021
Accordingly, a judicial process for land title10 or, indeed, title to chattels
(artifacts) or intangible interests, if brought directly to the court and if
within rights recognized and affirmed by s. 35, will continue unaffected by
any process under the implementation of UNDRIP, with the court recognizing
title as the court determines.
Nevertheless, UNDRIP and the implementing legislation set up a process
of consultation and cooperation with Indigenous societies within their
respective jurisdictions.11 This process is described in the federal backgrounder
as “broad and inclusive”, involving “national and regional Indigenous
organizations, Indigenous rights holders, modern treaty and
self-governing nations, women’s and youth organizations, 2SLGBTQQIA+
Indigenous persons, urban Indigenous people and other identified Indigenous
groups”.12
The objective both federally and in British Columbia is to proceed by
developing, with consultation and cooperation, an “action plan”,13 to be
completed within three years from the coming into effect of the legislation
(federal).14 However, both the federal and British Columbia implementation
provisions require this plan to be completed “as soon as practical”.15 Both
stipulate an annual reporting mechanism.16
The key provision in both implementing legislative measures is the obligation
on both governments, in consultation and cooperation with Indigenous
peoples, to “take all measures necessary to ensure that the laws of
Canada/British Columbia are consistent with the Declaration”.17 This consistency
will include affirmative measures in the context of cultural protection.
Articles 11 and 31 of UNDRIP provide:
• Article 11(2): “States shall provide redress through effective mechanisms
which may include restitution, 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”
• Article 31(1): “Indigenous peoples have the right to maintain, control,
protect and develop their cultural heritage, traditional knowledge
and traditional cultural expressions, as well as the mani-
festations 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”