THE ADVOCATE 721
VOL. 79 PART 5 SEPTEMBER 2021
• Article 31(2): “In conjunction with indigenous peoples, States shall
take effective measures to recognize and protect the exercise of
rights in Article 31(1)”
The essential phrase in art. 31(1) is “cultural heritage, traditional knowledge
and traditional cultural expressions”. This terminology is not new. It
has been at the core of many international reports and draft measures relating
to intangible cultural items. The most recent and significant are the
draft provisions of the Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore of the
World Intellectual Property Organization (“WIPO”).18 The expression “traditional”
is not intended to restrict cultural features to past or historical activities.
UNDRIP art. 11 provides for “future manifestations” of a society’s
culture. The culture itself is traditional, in the sense of being integral to the
particular society, but the showing or embodiment of it may be in a modern
or futuristic sense.
The recognition of cultural property will involve the laws and customs of
each Indigenous society. Only these laws can identify and describe the traditional
knowledge and traditional expressions of culture.19 Next, however,
there must be a recognition and application within federal or provincial
laws. Third, Canada will need to come within the developing WIPO draft
provisions if those provisions are looked to for international protection of
intangible cultural interests. Precision drafting ought to be involved in the
action plan process. Roch Ripley and I noted this in 2009 when urging that
progress be made.20
To conclude this short comment on what will involve a very substantial
process, attention is drawn to s. 4(a) of the federal implementing legislation,
which notes that in addition to providing a framework for the implementation
(s. 4(b)): “The purpose of the Act is to (a) affirm the Declaration as a
universal international human rights instrument with application in Canadian
law”. Such an affirmation is entirely consistent with the policy requirement
of reconciliation as effectively and fully discussed and applied in a
cultural context by Thompson J. in Servatius v. Alberni School District No. 70.21
ENDNOTES
1. United Nations Declaration on the Rights of Indigenous
Peoples, 13 September 2007, A/RES/61/
295, online: <un.org/development/desa/indige
nouspeoples/publications/official-documents-2.
html>.
2. United Nations Charter, art 25, online: <un.org/en
/about-us/un-charter/full-text>.
3. Ibid, art 18.2.
4. United Nations Declaration on the Rights of Indigenous
Peoples Act, SC 2021, c 14 (assented to 21
June 2021) Federal Act. See Department of Justice
Canada, “Backgrounder: United Nations Declaration
on the Rights of Indigenous Peoples Act” “Backgrounder”,
online: <justice.gc.ca/eng/declaration/
about-apropos.html>.
5. Declaration on the Rights of Indigenous Peoples Act,
SBC 2019, c 44 (assented to 28 November 2019)
BC Act.
6. See “Senate Approves Bill to Implement UN Declaration
on the Rights of Indigenous Peoples”, CBC (16
/official-documents-2.html
/full-text
/about-apropos.html
/official-documents-2.html
/full-text
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