Abstract
This chapter presents the reader synthesizes Canadian federal legislation on the First Nations, Métis and Inuit peoples of Canada in so far as it relates to cultural heritage, religious freedom and repatriation. Because this volume, as explained in Chap. 1 and reiterated in the introduction below, is geared toward an analysis of existing repatriation mechanisms from a human rights perspective, this chapter is selective in the areas that are analysed. After the structure within which Indigenous Peoples, Museums, Federal and Provincial Governments operate is explained, the core legal areas and instruments are explained and analysed. These are the Indian Act and Aboriginal Law with a view to Indigenous Peoples, freedom of religion within the Charter in light of the focus on sacred heritage, and national export legislation and the Museums act with regard to cultural heritage. In the same way that this volume has been written as one cohesive piece, Part III should be read together as a whole: federal law is analysed and presented in this chapter, the analysis of provincial law will be featured in Chap. 7, the concluding analysis on this part, the synthesis and application of human rights standards and conclusion to Part III can be found in Chap. 8.
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Notes
- 1.
Royal Commission on Aboriginal Peoples (1991), p. 15.
- 2.
Please note that this chapter adopts the capitalization of the terms Indigenous Peoples and Indigenous (except for when used in citations) for reasons explained in Chap. 1. Capital A is used in Aboriginal for similar reasons except for citations, when spelled differently in the original source cited.
- 3.
For example, the adoption of the First Nations Sacred Objects Repatriation Act and accompanying regulation in the early 2000s in Alberta and the more recently adopted B.C. Declaration on the Rights of Indigenous Peoples Act which was passed on November 28th 2019.
- 4.
Millen and Adkins (22.10.2018).
- 5.
Declaration on the Rights of Indigenous Peoples Act [SBC 2019] Chapter 44 (Assented to 2019-11-28).
- 6.
United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (Assented to 2021-06-21).
- 7.
Bell et al. (2008b), p. 203.
- 8.
To better appreciate the impact of repatriation on the life of a community and the many legal and bureaucratic hurdles Indigenous Peoples face in specific cases, the interested reader is referred to the cooperative research undertaken in British Columbia, see Bell and Napoleon (2008). For Alberta consult the contributions compiled by Gerald Conaty on the repatriation work undertaken by the Glenbow, see Conaty (2015).
- 9.
Department of Justice, Government of Canada, About Canada’s justice system, available at: http://www.justice.gc.ca/eng/csj-sjc/just/05.html [last accessed 18.08.2021].
- 10.
Due to this Act, Canada effectively became ‘patriated’ from the United Kingdom. http://www.justice.gc.ca/eng/csj-sjc/just/05.html [last accessed 18.08.2021].
- 11.
This includes the Constitution Act 1982 (s.52(2)(a)), several acts and orders which are included in the schedule to the Constitution Act, 1982 (s.52(2)(b)), as well as any future amendments. Most notably, Acts included in the Constitution by virtue of s.52(2)(b) are the Constitution Act 1867 (formerly known as the British North America Act 1867) and the Canadian Charter of Rights and Freedoms. See also Hogg (2007b (loose-leaf updated 2015)), p. 1-7 and 1-8, who counts 30 Acts and orders.
- 12.
Hogg (2007b (loose-leaf updated 2015)), p. 1-9.
- 13.
New Brunswick Broadcasting Co. v Nova Scotia [1993] 1 S.C.R. 319.
- 14.
van Ert (2010), p. 927.
- 15.
van Ert (2010), p. 928.
- 16.
Canada (AG) v Ontario (AG) [1937] UKPC 6, [1937] A.C. 326.
- 17.
Paterson (2010), p. 234.
- 18.
van Ert (2010), p. 928.
- 19.
Hogg (1992), pp. 108–109.
- 20.
This chapter will adopt the terms used in the Constitution Acts and employ Legislature for a provincial parliament and Parliament for the federal level body.
- 21.
Hogg (2007b (loose-leaf updated 2015)), p. 5-15.
- 22.
Hogg (2007b (loose-leaf updated 2015)), p. 5-17, p. 15–18.
- 23.
Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31.
- 24.
Bell (2001), p. 247.
- 25.
Hogg (2007b (loose-leaf updated 2015)), p. 29-22.
- 26.
Paterson (2010), p. 234.
- 27.
Hogg (2007b (loose-leaf updated 2015)), p. 15-38.15.
- 28.
Hogg (2007b (loose-leaf updated 2015)), p. 14-38.13.
- 29.
Hogg (2007b (loose-leaf updated 2015)), p. 14-38.13.
- 30.
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256, at para 130.
- 31.
For example in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, paras 304–304 Abella J dissenting.
- 32.
Subsections 35(3) and (4) were added by the Constitution Amendment Proclamation, 1983 (see SI/84-102).
- 33.
Section 35.1 was added by the Constitution Amendment Proclamation, 1983 (see SI/84-102). It reads:
35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,
-
(a)
a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
-
(b)
the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.
-
(a)
- 34.
Carlson (2005), p. 450.
- 35.
S.52(1) Constitution Act 1982: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
- 36.
Hogg (2007b (loose-leaf updated 2015)), p. 28-29.
- 37.
Vicaire (2011), p. 18, has aptly described the constitutional process with regard to the Indigenous Peoples of Canada as follows: “Canadian constitutional documents have progressively welded Aboriginal tribes to Canadian society, subordinating their sovereignty at a high price and largely without consultation.”
- 38.
See also Borrows (2016), p. 7 “The assumption in the Sparrow case, that the Crown could unilaterally extinguish rights prior to 1982, is offensive.”
- 39.
St. Catharine’s Milling and Lumber Co. v. R [1887] 13 S.C.R. 577, at 604 “The word ‘trusts’ would not be an appropriate expression to apply to the relation between the crown and the Indians respecting the unceded lands of the latter. As will appear hereafter very clearly, such relationship is not in any sense that of trustee and cestui que trust, but rather one analogous to the feudal relationship of lord and tenant, or, in some aspects, to that one, so familiar in the Roman law, where the right of property is dismembered and divided between the proprietor and a usufructuary.”
- 40.
Calder et al. v Attorney-General of British Columbia [1973] S.C.R. 313.
- 41.
Vicaire (2011), p. 20.
- 42.
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005] 3 S.C.R. 388, 2005 SCC 69, at para 1.
- 43.
Tsilhqot’in Nation v. British Columbia [2014], at para 82; Royal Commission on Aboriginal Peoples (1996), p. 16.
- 44.
Royal Commission on Aboriginal Peoples (1991), p. 17.
- 45.
Royal Commission on Aboriginal Peoples (1996), p. 35.
- 46.
http://www.oed.com/view/Entry/159781?redirectedFrom=reconciliation#eid [last accessed 18.08.2021].
- 47.
http://www.oed.com/view/Entry/159781?redirectedFrom=reconciliation#eid [last accessed 18.08.2021].
- 48.
Griffith (2016).
- 49.
Imai (2014), pp. 611–612.
- 50.
Olthuis Kleer Townshend LLP (2018), p. 16.
- 51.
Tsilhqot’in Nation v. British Columbia [2014].
- 52.
Imai (2014), p. 626.
- 53.
Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 48, [2014] 2 S.C.R. 447, at para 53.
- 54.
Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) [2005], at para 48, para 49–58, purpose element inferred from para 60.
- 55.
Mikisew [2005], at para 54.
- 56.
Ibid, at para 61 relying on Delgamuukw.
- 57.
Grassy Narrows First Nation v. Ontario (Natural Resources) [2014], at para 53.
- 58.
Imai (2014), p. 829.
- 59.
Imai (2014), p. 829.
- 60.
R v Sparrow [1990] S.C.R. 1075, 1091.
- 61.
While consultation arguably incorporates an element of multilateralism, courts at all levels have been keen to point out that the duty to consult is a matter of degree and may at times even amount to little more than a duty to inform.
- 62.
Borrows (2015), p. 735-737.
- 63.
Hogg (2007b (loose-leaf updated 2015)), p. 28-16.
- 64.
Tsilhqot’in Nation v. British Columbia [2014], para 147.
- 65.
Hogg (2007b (loose-leaf updated 2015)), p. 28-13.
- 66.
Tsilhqot’in Nation v. British Columbia [2014], paras 139–142: “[139] As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society.
140 What role then is left for the application of the doctrine of interjurisdictional immunity and the idea that Aboriginal rights are at the core of the federal power over “Indians” under s. 91(24) of the Constitution Act, 1867? The answer is none.
141 The doctrine of interjurisdictional immunity is directed to ensuring that the two levels of government are able to operate without interference in their core areas of exclusive jurisdiction. This goal is not implicated in cases such as this. Aboriginal rights are a limit on both federal and provincial jurisdiction.
142 The guarantee of Aboriginal rights in s. 35 of the Constitution Act, 1982, like the Canadian Charter of Rights and Freedoms, operates as a limit on federal and provincial legislative powers. The Charter forms Part I of the Constitution Act, 1982, and the guarantee of Aboriginal rights forms Part II. Parts I and II are sister provisions, both operating to limit governmental powers, whether federal or provincial. Part II Aboriginal rights, like Part I Charter rights, are held against government — they operate to prohibit certain types of regulation which governments could otherwise impose. These limits have nothing to do with whether something lies at the core of the federal government’s powers.” Emphasis added.
- 67.
Ladner (2009), p. 282-283 In evaluating the SCC has observed “The Supreme Court … has instead viewed Aboriginal and treaty rights as creations of the Canadian constitutional order that is subject to judicial interpretation and parliamentary supremacy. The court has therefore framed reconciliation in a manner that is inconsistent with principles of treaty constitutionalism, and it has done so in a way that disregards Indigenous constitutional orders.”
- 68.
Ladner (2009), p. 283-284.
- 69.
Hogg (2007b (loose-leaf updated 2015)), p. 28-22.
- 70.
Hogg (2007b (loose-leaf updated 2015)), p. 28-22, 28-23.
- 71.
Hogg (2007b (loose-leaf updated 2015)), p. 28-22, 28-23.
- 72.
Imai (2014), p. 611-612.
- 73.
Natural Parents v Superintendent of Child Welfare [1976] 2 S.C.R. 751, at 787.
- 74.
Derrickson v. Derrickson [1986] 1 S.C.R. 285, at para 57.
- 75.
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, (extinguishment prior to 1982), at paras 172–176. Tsilhqot’in Nation v. British Columbia [2014], at paras 128–152, allows for the impairment not the extinguishment of aboriginal title by the province.
- 76.
Hogg (2007b (loose-leaf updated 2015)), p. 28-23, 28-24.
- 77.
See official website of Statistics Canada at: https://www12.statcan.gc.ca/census-recensement/2016/rt-td/ap-pa-eng.cfm [last accessed 19.08.2021].
- 78.
https://www12.statcan.gc.ca/census-recensement/2016/ref/guides/009/98-500-x2016009-eng.cfm [last accessed 19.08.2021].
- 79.
https://www12.statcan.gc.ca/census-recensement/2016/ref/guides/009/98-500-x2016009-eng.cfm [last accessed 19.08.2021].
- 80.
Reference as to whether “Indians” includes in s. 91 (24) of the B.N.A. Act includes Eskimo in habitants of the Province of Quebec [1939] S.C.R. 104. Hogg (2007b (loose-leaf updated 2015)), p. 28-24.
- 81.
Hogg (2007b (loose-leaf updated 2015)), p. 28-24.
- 82.
Hogg (2007b (loose-leaf updated 2015)), p. 28-25.
- 83.
Hogg (2007b (loose-leaf updated 2015)), p. 28-25, 28-26.
- 84.
Hogg (2007b (loose-leaf updated 2015)), p. 28-25, 28-26 Delgamuukw v British Columbia, [1997].
- 85.
Hogg (2007b (loose-leaf updated 2015)), p. 28-25, 28-26.
- 86.
For governmental recognition of the colonial history of act see for example preamble of Indian Act Amendment and Replacement Act S.C. 2014, c. 38 “Whereas the Indian Act is an outdated colonial statute, the application of which results in the people of Canada’s First Nations being subjected to differential treatment; Whereas the Indian Act does not provide an adequate legislative framework for the development of self-sufficient and prosperous First Nations’ communities”.
- 87.
Robinson (2016).
- 88.
The united Provinces of Canada was a union of the previous Upper and Lower Canada and was the result of colonial policies to suppress rebellion, the capital moved between Kingston, Montréal, Toronto and Québec City. Stockford Careless (2019).
- 89.
Grammond (2009), p. 106.
- 90.
Grammond (2009), p. 108.
- 91.
Grammond (2009), p. 108.
- 92.
Grammond (2009), p. 116.
- 93.
Grammond (2009), p. 117-119.
- 94.
See for example Maa-nulth First Nations Final Agreement Act, S.B.C. 2007, c. 43, s.29.1.1 “‘Maa-nulth First Nation Citizen’ means an individual who becomes a citizen of a Maa-nulth First Nation under a Maa-nulth First Nation Law.”
- 95.
Borrows (2016), pp. 5–6 See also account of the effect of the act on women of their family by two members of the Mi’kmaq Nation Simon and Clark (2013), p. Coombe (1993), p. 274 Coombe observed that it “curb[ed] constitutional and citizenship rights in the paternalistic guise of Indian protection, while suppressing aboriginal languages, culture, and collective identity… Indian identity has thus been defined and determined by a bureaucracy committed to its disappearance.”
- 96.
Grammond (2009), p. 107.
- 97.
R v Sparrow [1990], at 1108.
- 98.
R v Sparrow [1990], at 1114.
- 99.
McCabe (2008), p. 57.
- 100.
McCabe (2008), p. 41-42.
- 101.
McCabe (2008), p. 41-42 Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511, 2004 SCC 73.
- 102.
Wewaykum Indian Band v. Canada [2002] 4 S.C.R. 245, 2002 SCC 79, para 85, emphasis added.
- 103.
McCabe (2008), p. 146.
- 104.
Wewaykum Indian Band v Canada [2002] at para 93.
- 105.
McNeil (2008), p. 939.
- 106.
McCabe (2008), p. 190.
- 107.
McCabe (2008), p. 216.
- 108.
Giving multiple examples of this characterization, see McCabe (2008), p. 27-28 Cases: Sheldon v Ramsay [1851] O.J. No. 82, 9 U.C.R. 105 at 133. Ontario Mining Co v Seybold [1899] O.J. No. 113, 31 O.R. 386 at 398, Ontario v Canada [1909] S.C.J. No.28, 42 S.C.R.1 at 117–118.
- 109.
http://www.oed.com/view/Entry/159781?redirectedFrom=reconciliation#eid [last accessed 19.08.2021].
- 110.
Royal Commission on Aboriginal Peoples (1991), p. 231.
- 111.
See Sect. 6.2.2 above.
- 112.
Bartlett (1980), p. 11.
- 113.
Borrows (2006), p. 10.
- 114.
Bartlett (1980), p. 13.
- 115.
There were three additional rounds of prohibitions of customs and dance introduced in 1895, 1914 and 1933. As cited in Bartlett (1980), p. 13.
- 116.
Coombe (1993), p. 274.
- 117.
Duncan Campell Scott, Statement, National Archives of Canada, Record Group 10, volume 6810, file 470-2-3, volume 7, pp. 55 (L-3) and 63 (N-3).
- 118.
McCabe (2008), p. 137-138.
- 119.
McCabe (2008), p. 140.
- 120.
Bell (2009), p. 19-21 Another negative example which influenced the development of aboriginal community life significantly was the interrelation of the Indian Act with Indian residential schools.
- 121.
For the role of bah’lats (Potlatch) laws for the Carrier people, see Borrows (2006), p. 63.
- 122.
Bell et al. (2008a), pp. 46–53.
- 123.
Bell et al. (2008a), p. 53.
- 124.
Bell et al. (2008a), p. 53-54.
- 125.
Compare Bell (1992), p. 492.
- 126.
S.5(1) read in conjunction with s.2(1).
- 127.
Imai (2014), p. 91-92.
- 128.
There is ample literature on this point. Interested readers may consult for example Grammond (2009), p. 110 onwards.
- 129.
Borrows (2006), p. 130.
- 130.
Imai (2014), p. 88.
- 131.
Borrows (2006), p. 137.
- 132.
Royal Commission on Aboriginal Peoples (1996), p. 183.
- 133.
This is not to say that both the concept of fiduciary duty and honor of the Crown cannot help an Indigenous claimant in a particular case. Indigenous peoples are in a comparatively more vulnerable position because of past and present injustices that continue to persist and are continuing to be perpetuated in the law. But the duality of such concepts (including rights) needs to be acknowledged to be mindful of how they are employed.
- 134.
Bartlett (1980), p. 13 “The astonishing feature of the amendments up to 1950 is how little, despite their frequency, they have sought to accomplish.”
- 135.
Compare Royal Commission on Aboriginal Peoples (1996), p. 285.
- 136.
Bartlett (1980), p. 14.
- 137.
Imai (2014), p. 270.
- 138.
Bartlett (1980), p. 22.
- 139.
Vicaire (2011), p. 20.
- 140.
Hogg (2007b (loose-leaf updated 2015)), p. 28-18.
- 141.
Hogg (2007b (loose-leaf updated 2015)), p. 28-18.
- 142.
Hogg (2007b (loose-leaf updated 2015)), p. 28-16.
- 143.
In the three prairie provinces this covers right to game and fish for food.
- 144.
But it can find entry into the legal arena if we (a) recognize treaties as treaties negotiated between sovereign nations with their own legal systems (b) identify and interpret aboriginal rights in light of the Indigenous law that determines their exercise within the community.
- 145.
Royal Commission on Aboriginal Peoples (1996), p. 32.
- 146.
R v Van der Peet [1996] 2 S.C.R. 507, para 45.
- 147.
Youngblood Henderson (2006), p. x.
- 148.
Youngblood Henderson (2006), pp. 66–67.
- 149.
Youngblood Henderson (2006), p. 51.
- 150.
Youngblood Henderson (2006), p. 51.
- 151.
Christie (1998), p. 475-476.
- 152.
Government of Canada website, Crown-Indigenous Relations and Northern Affairs Canada, https://www.rcaanc-cirnac.gc.ca/eng/1100100028605/1551194878345 [last accessed 19.08.2021].
- 153.
Christie (1998), p. 470.
- 154.
- 155.
Christie (1998), p. 470 Parts of argument in FN.
- 156.
Royal Commission on Aboriginal Peoples (1991), p. 191.
- 157.
R.V. Van der Peet [1996], at para 50: “It is possible, of course, that the Court could be said to be ‘reconciling’ the prior occupation of Canada by aboriginal peoples with Crown sovereignty through either a narrow or broad conception of aboriginal rights; the notion of “reconciliation” does not, in the abstract, mandate a particular content for aboriginal rights. However, the only fair and just reconciliation is, as Walters suggest, one which takes into account the aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each.”
- 158.
McCabe (2008), p. 41 Relying on R v Van der Peet at paras 31, 36, 42–43; R v Gladstone (Gladstone No.1) [1996] S.C.J. No.79 at para 72; R v Adams [1996] S.C.J. No.87 and R v Powley [2003] S.C.J. No.43.
- 159.
Compare Mark Walters referenced in R.V. Van der Peet [1996], para 42: “The challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined … a morally and politically defensible conception of aboriginal rights will incorporate bot legal perspectives.”
- 160.
On these see Hogg (2007b (loose-leaf updated 2015)), p. 28-21.
- 161.
Panagos (2016), p. 23-25.
- 162.
Hogg (2007b (loose-leaf updated 2015)), p. 28-23 It need not be identical, but it can for instance be pursued using modern means.
- 163.
Distinctive is not to be understood as permitting the use of stereotypes for classification or “anthropological curiosities”, see R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686, 2006 SCC 54, para 42.
- 164.
R v Van der Peet [1996], para 256.
- 165.
Imai (2014), p. 713-714.
- 166.
Imai (2014), p. 716.
- 167.
Christie (1998), p. 479 R v Van der Peet [1996], para 59.
- 168.
Hogg (2007b (loose-leaf updated 2015)), p. 28-44.21 in reference to R v Sparrow [1990], at 1091.
- 169.
Sparrow has clarified that the sovereign’s intention must have been “clear and plain”. J.Y.H remarks critically “The conceptual problems with the clear and plain approach are that if the Sovereign has not explicitly conveyed the intention to Aboriginal peoples, how can it be said that the intention is either honourable or “clear and plain”? Youngblood Henderson (2006), p. 75.
- 170.
Hogg (2007b (loose-leaf updated 2015)), p. 29-45.
- 171.
Supreme Court, R v. Sparrow [1990], at 1112-1113. Imai (2014), p. 829.
- 172.
Hogg (2007b (loose-leaf updated 2015)), p. 28-46.
- 173.
Mikisew Cree First Nation v Canada (Governor General in Council) [2018], at para 154.
- 174.
Imai (2014), p. 829.
- 175.
Compare Panagos (2016), p. 24.
- 176.
First drawn in R v Adams, affirmed in R v Delgamuukw. See also, Carlson (2005), p. 465.
- 177.
Royal Commission on Aboriginal Peoples (1996), p. 180.
- 178.
Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73, 2004 CSC 73, paras 10,15,20.
- 179.
McCabe (2008), p. 85-87.
- 180.
Haida Nation v British Columbia (Minister of Forests) [2004], para 41.
- 181.
Haida Nation v British Columbia (Minister of Forests) [2004], per McLachlin CJ, para 10.
- 182.
Hogg (2007b (loose-leaf updated 2015)), p. 28–34.21.
- 183.
See in more detail on empty box theory Youngblood Henderson (2006), p. 45-46.
- 184.
Borrows (2006), p. 153.
- 185.
Hogg (2007b (loose-leaf updated 2015)), p. 28-26.
- 186.
Millen and Adkins (22.10.2018), p. 7 At 7-8 citing Tsilhqot’ in which in total took 24 years.
- 187.
Borrows (2006), p. 102.
- 188.
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) 2017 SCC 54, [2017] 2 S.C.R. 386.
- 189.
For discussion of SCC treatment of s.2(a) CCRF see Sect. 6.3.3.1 below.
- 190.
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) [2017], para 84.
- 191.
Ibid, para 79.
- 192.
Ibid, paras 79–80.
- 193.
Ibid, para 80.
- 194.
Ibid, para 80.
- 195.
Hopkins-Utter (2.11.2017), p.
- 196.
For obvious reasons there can be no aboriginal right to repatriation given the need for a pre-contact practice and the fact that objects were removed from their source communities by settlers or government agents.
- 197.
R. v Van der Peet [1996] , paras 44–46.
- 198.
This could, for example, occur for shared ceremonial or story-telling aspects.
- 199.
Bell (1992), p. 509.
- 200.
Bell (1992), p. 509.
- 201.
Bell (1992), p. 509.
- 202.
R. v Sparrow [1990] 1 S.C.R. 1075, at 1093.
- 203.
- 204.
This can be a costly enterprise for the Indigenous community and could be understood as a repeated colonial expression of outside control over Indigenous heritage if it is made a condition for repatriation.
- 205.
This can likewise be inadvisable; it might be that the community prefers a non-Indigenous person to handle the object rather than a member from another community.
- 206.
Christie (1998), p. Christie critically discusses the possible uses of aboriginal rights for the protection of aboriginal culture as well as the dangers thereof. See at 476 onwards for the protection of Aboriginal narratives by means of the aboriginal right to the exclusive control or use of ‘culturally significant legends’.
- 207.
Similarly Christie (1998), p. 476.
- 208.
Christie (1998), p. 480.
- 209.
In this respect, the author agrees with Kagan (2005), p. Kagan deplores the weakness of the aboriginal rights approach and takes this as the starting point for developing an alternative approach through the application of common law in order to facilitate repatriation efforts.
- 210.
One could for example argue for an Aboriginal right to use the sacred object and keep it with its community without changing the property law aspects of the matter.
- 211.
Simon v The Queen, [1985] 2 S.C.R. 387 affirmed that historical treaties predating Confederation are protected under s.35(1). See also Royal Commission on Aboriginal Peoples (1991), p. 193 S.35(3) clarifies that the protection extends to modern treaties.
- 212.
Government of Canada website—Crown-Indigenous Relations and Northern Affairs Canada, https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231#chp3 [last accessed 19.08.2021].
- 213.
Simon v The Queen [1985], para 27.
- 214.
Royal Commission on Aboriginal Peoples (1991), pp. 206–207 Simon v The Queen, [1985] 2 S.C.R. 387, para 33.
- 215.
McCabe (2008), p. 79-80.
- 216.
McCabe (2008), p. 77 Relying on R. v Marshall, [1999] 3 S.C.R. 456 at para 52.
- 217.
Borrows (2006), p. 109.
- 218.
- 219.
Asch (2014), p. 21.
- 220.
British Columbia Treaty Commission, Annual Report 2003, at 10.
- 221.
- 222.
Asch (2014), p. 11 Asch has remarked critically that this “prejudices the outcome” as “becomes one based on this singular pre-condition: the agreement on the part of Indigenous peoples that the scope of their political rights, and in particular their right to self-determination, is circumscribed by the fact that, at the end of the day, whatever rights they may have are subordinate to the legislative authority of the Canadian state. Yet, this logically ought not to be the case, if for no other reason than that the political rights of Indigenous peoples already existed at the time that Crown sovereignty was asserted and, therefore it is the question of how the Crown gained sovereignty that requires reconciliation with the pre-existence of Indigenous societies and not the other way around.”
- 223.
P. Hogg rightly observes “We are left with the unsatisfactory position that treaty rights have to yield to any law that can satisfy the Sparrow standard of justification… In my view, the standard of justification for a law impairing a treaty right should be very high indeed.” Hogg (2007b (loose-leaf updated 2015)), p. 28-50.
- 224.
Hogg (2007b (loose-leaf updated 2015)), p. 28-49, 28-50.
- 225.
Hogg (2007b (loose-leaf updated 2015)), p. 28-50.
- 226.
Hogg (2007b (loose-leaf updated 2015)), p. 28-51.
- 227.
Hogg (2007b (loose-leaf updated 2015)), p. 28-50.
- 228.
Human rights instruments such as the Alberta Human Rights Act, protects individuals against actions committed by other individuals.
- 229.
Reference as to Powers to Levy Rates on Foreign Legations [1943] S.C.R. 208; Health Services and Support—Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, 2007 SCC 27, para 69; Divito v Can [2013] 3 S.C.R.157, 2013 SCC 47, paras 22–27.
- 230.
Battiste and Henderson (2000), p. 173.
- 231.
Hogg (2007a (loose-leaf edition updated 2015)), p. 36-41, 36-42.
- 232.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, para 94.
- 233.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, para 95.
- 234.
Hogg (2007a (loose-leaf edition updated 2015)), p. 42-44.
- 235.
Art.6(a)(c) 1981 Declaration of General Assembly, Human Rights Council Resolution 6/37 para 9(e). See discussion of Art.18 ICCPR in Chap. 2.
- 236.
See Sect. 6.3.3.4.
- 237.
Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. For s.35 claim discussion see Sect. 6.3.2.1.2.
- 238.
Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) [2017], para 63.
- 239.
Ibid, para 68 relying on Multani v. Commission scolaire Marguerite-Bourgeoys [2006] 1 S.C.R. 256, 2006 SCC 6, para 34.
- 240.
Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) [2017], paras 68–69 and 123.
- 241.
Ibid, para 70.
- 242.
Ibid, paras 70–71.
- 243.
Ibid, para 72.
- 244.
Ibid, para 126.
- 245.
Ibid, para 117.
- 246.
Ibid, para 127.
- 247.
Compare Ibid, para 131.
- 248.
Ibid, para 119, using Doré framework para 136.
- 249.
Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497.
- 250.
Borrows (2006), p. 125.
- 251.
CERD General Recommendation No.23 (1997), para 4.
- 252.
The wording of s.25 suggests that the category of protected rights is to be understood broadly: “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada …” [emphasis added].
- 253.
R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41, para 120.
- 254.
Ibid para 79.
- 255.
Ibid, paras 81, 80.
- 256.
Ibid, para 79.
- 257.
Ibid.
- 258.
Hogg (2007a (loose-leaf edition updated 2015)), p. 38-18.
- 259.
Hogg (2007a (loose-leaf edition updated 2015)), p. 36-37, 36-38.
- 260.
Hogg (2007a (loose-leaf edition updated 2015)), p. 36-22.
- 261.
Hogg (2007a (loose-leaf edition updated 2015)), p. 36-28.
- 262.
‘Living tree’ concept i.e. in Canada (Attorney General) v. Hislop [2007] 1 S.C.R. 429, 2007 SCC 10, paras 94,144 (interpretation of Charter generally).
- 263.
United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14).
- 264.
House of Commons Debates, 43-2, No. 60 (17 February 2021) 1810 (Hon David Lametti) “the objective of these acknowledgements is to recognize existing legal principles and not give the declaration itself direct legal effect in Canada.”
- 265.
House of Commons Debates, 43-2, No. 60 (17 February 2021) 1810 (Hon David Lametti) “the objective of these acknowledgements is to recognize existing legal principles and not give the declaration itself direct legal effect in Canada.”
- 266.
House of Commons Debates, 43-2, No. 60 (17 February 2021) 1815 (Hon David Lametti).
- 267.
Human Rights Council, Study of the Expert Mechanism on the Rights of Indigenous Peoples, Free, prior and informed consent: A human-rights based approach, U.N. Doc.A/HRC/39/62 [10.08.2018], para 26(a).
- 268.
Ibid.
- 269.
For a discussion of the B.C. legislation implementing UNDRIP and the challenges of FPIC, see Sayers (2020), p. 14.
- 270.
United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14), recitals 9 and 10.
- 271.
United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14), recital 2.
- 272.
Joffe (2021), p. 1.
- 273.
Prott and O’Keefe (1989), p. 458.
- 274.
List of countries having ratified the 1970 Convention, in alphabetical order available via http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html#STATE_PARTIES [last accessed 19.08.2021].
- 275.
UNESCO, Reports of Member States on the action taken by them to implement the Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property (1964) and the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), [1978] UNESCO Doc. Ref. 20 C/84, p.15. Emphasis added.
- 276.
S.11(1) CPEIA. CPEIA current to 2019-06-06-06-28 at time of editing.
- 277.
Canadian Cultural Property Export Control List [C.R.C. c.448] current to 2019-06-06 at time of editing, Group I s.4(2)(a)(vi).
- 278.
Canadian Cultural Property Export Control List [C.R.C. c.448], Group I s.4(1) read in conjunction with s.4(2)(a)(vi).
- 279.
S.4(3)CPEIA and Canadian Cultural Property Export Control List, Group II s.2.
- 280.
This is expressed by the use of the connector ‘and’ between subparagraphs (a) and (b) as well as the wording of s11(3) CPEIA “Where an expert examiner determines that an object that is the subject of an application for an export permit that has been referred to him is of outstanding significance under paragraph (1)(a) and meets the degree of national importance referred to in paragraph (1)(b), the expert examiner shall forthwith in writing advise the permit officer who referred the application not to issue an export permit in respect of the object and shall provide the permit officer with the reasons therefor.” (emphasis added by the author).
- 281.
Institutions or public authorities may make a purchase offer under s.29, the Department of Canadian Heritage has give guidance that aboriginal governing bodies can classify as public authorities, see: https://www.canada.ca/en/canadian-heritage/services/designation-institutions-cultural-property.html [last accessed 19.08.2021]. Funds may be made available.
- 282.
This was experienced by the Saanich people in the case of the SDDLNEWHALA (“Stel-nuh-quay-la”) medicine bowl. For a Saanich account of this experience, read Henry (1995), p.
- 283.
Kuprecht (2014), pp. 105–106.
- 284.
Nafziger et al. (2010), p. 711.
- 285.
Nafziger et al. (2010), p. 726.
- 286.
Nafziger et al. (2010), p. 713.
- 287.
Paterson (2007), p. 428.
- 288.
Nafziger et al. (2010), p. 713.
- 289.
Nafziger et al. (2010), p. 715 See also Rockwell et al v Trustees of the Berkshire Museums et al (7.11. 2017) WL 6940932.
- 290.
Additional restrictions may also arise in the case of conditional donations.
- 291.
See Sect. 6.4.2.
- 292.
https://www.canada.ca/en/services/culture/cultural-attractions/museums-galleries/national-museums.html [last accessed 19.08.2021].
- 293.
Museums Act S.C. 1990, c.3 governs the seven museum corporations National Gallery of Canada, the Canadian Museum of History, the Canadian Museum of Nature, the National Museum of Science and Technology, the Canadian Museum for Human Rights and the Canadian Museum of Immigration at Pier 21. The Canadian Museum of History Corporation also oversees the operation of and includes the Canadian War Museum and any other affiliated museums under s.7(2) Museums Act S.C. 1990, c.3. Museums Act current as to 2021-06-28 at time of editing.
- 294.
Apart from the museums, there is also Parks Canada. It is a federal government agency that is responsible for national historic sites, national parks and national marine conservation areas. It has also established a repatriation policy and repatriated a number of items. For more information see: Myles (2010).
- 295.
S.3(a) Museums Act S.C. 1990, c.3.
- 296.
S.8 Museums Act S.C. 1990, c.3.
- 297.
S.9(1)(a) Museums Act S.C. 1990, c.3.
- 298.
S.9(1)(c) Museums Act S.C. 1990, c.3.
- 299.
S.9(1) Museums Act S.C. 1990, c.3.
- 300.
S.9(2) Museums Act S.C. 1990, c.3.
- 301.
Sacred Materials project which “provides First Nations with an opportunity to review collections held by the Corporation, identify objects requiring special care, and discuss repatriation, as required.” Information provided by Canadian Museum of History, Website, available at: http://www.historymuseum.ca/learn/research/repatriation/#tabs [last accessed 19.08.2021]. Project established in 1993, Summary Report Corporate Plan 2011–2012 to 2015–2016, at 15 available at: http://www.historymuseum.ca/wp-content/uploads/2015/09/corp2011e.pdf [last accessed 19.08.2021].
- 302.
http://www.historymuseum.ca/learn/research/repatriation/#tabs [last accessed 19.08.2021].
- 303.
Summary Report Corporate Plan 2014–2015 to 2018–2019, p. 42, available via: https://www.historymuseum.ca/about/the-corporation/#tabs [last accessed 19.08.2021].
- 304.
Summary of the Corporate Plan 2003–2005 to 2007–2008 and Summary of the Operating and Capital Budgets 2003–2004, p. 9, available at: http://www.historymuseum.ca/wp-content/uploads/2015/09/corp03e.pdf, [last accessed 19.08.2021].
- 305.
Repatriation Policy [2001] adopted by the Canadian Museum of Civilization Corporation, available at: http://www.historymuseum.ca/wp-content/uploads/2015/09/REPATRIATION-POLICY.pdf [last accessed 19.08.2021].
- 306.
Art.5(3) Repatriation Policy 2001.
- 307.
CMH Website, http://www.historymuseum.ca/learn/research/repatriation/#tabs [last accessed 19.08.2021].
- 308.
Glass (2004), p. 132.
- 309.
Bolton (2009), p. 145.
- 310.
“The Spirit Sings” exhibition was a watershed in Canadian museology.” Task Force Report, 1994, at 7.
- 311.
Ibid, 1994, at 1.
- 312.
Ibid, at 4. The report speaks of Indigenous interpretation which “includes all facets of museum administration, research, public program and exhibition planning, and the presentations that result from such planning”. One example is s.3(b)(v) “museums are urged to share management of their collections”, at 9.
- 313.
Ibid, at 4.
- 314.
Ibid, at 7 (principles).
- 315.
Ibid, at 4.
- 316.
Ibid, at 8, recommendation 3(a).
- 317.
Ibid, at 9, recommendation 3 (c).
- 318.
While restitution thus covers a broad category of objects, this is however softened by the fact that is one of the recommended options, ibid, at 9., 3(b)(i).
- 319.
Ibid, 3(b)(iii) at 9.
- 320.
Ibid, at 4.
- 321.
In general: “There is a strong consensus that Partnerships should be guided by moral, ethical and professional principles and not limited to areas of rights and interests specified by law”, ibid, at 4. A specific example is recommendation 3(b)(ii), at 9.
- 322.
Bolton (2009), p. 151-152.
- 323.
Bolton (2009), p. 151.
- 324.
Bolton (2009), p. 152.
- 325.
Clavir (2002), p. 33, 40-41.
- 326.
Clavir (2002), p. 35.
- 327.
Myles (2010), p. 50.
- 328.
Task Force Report on Museums and First Peoples [1992, reprinted 1994], A Report jointly sponsored by the Assembly of First Nations and the Canadian Museums Association, available at: http://museums.in1touch.org/uploaded/web/docs/Task_Force_Report_1994.pdf, p. 4. [last accessed 19.08.2021].
- 329.
Available via the website of the National Centre for Truth and Reconciliation at: http://nctr.ca/reports.php [last accessed 19.08.2021].
- 330.
Truth and Reconciliation Commission of Canada (2015) Calls to Action. Truth and Reconciliation Commission of Canada, Winnipeg, Manitoba.
- 331.
Katz (22.04.2019).
- 332.
Canadian Museums Association [CMA], Ethics Guidelines (2006) Ottawa, guidelines A.1 and A.2.
- 333.
CMA, Ethics Guidelines, C.1.
- 334.
Bolton (2009), p. 150.
- 335.
CMA, Ethics Guidelines, B.1 “Museum ethics represent more than the avoidance of contractual or legal liability”.
- 336.
CMA, Ethics Guidelines, C.3, emphasis added. Also, G “it is the responsibility of museums to actively seek it out from knowledgeable members of the appropriate cultural groups before using the object in any way.”
- 337.
CMA, Ethics Guidelines, E.3.
- 338.
CMA, Ethics Guidelines, F.
- 339.
CMA, Ethics Guidelines, G.
- 340.
CMA, Ethics Guidelines, G.
- 341.
CMA Ethics Guidelines, G “Museums should be committed to the return of …”.
- 342.
CMA Ethics Guidelines, G “Museums should be committed to the return of …”.
- 343.
CMA Ethics Guidelines, E.4 “generally there is a strong presumption against the disposal of accessioned collections to which the museum has acquired legal title”.
- 344.
CMA Deaccessioning Guidelines, 2015 (reviewed and updated for HTML in 2020), B. introduction, available via: https://www.museums.ca/site/deaccessioning_guidelines [last accessed 19.08.2021].
- 345.
CMA Deaccessioning Guidelines, 2014, D.1: “improved care for the object(s), improved access to the object(s), retention of an object(s) within the community or removal of a potentially hazardous item”.
- 346.
CMA Deaccessioning Guidelines, 2014, G. For example, by preferring communities, or community cultural institutions over bigger museums.
- 347.
All numbers and questions in this paragraph were taken from CMA’s Reconciliation Program National Survey Results (accessed 30.07.2021) available at: https://www.museums.ca/site/muse_article_reconciliationsurvey_2020.
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Tünsmeyer, V. (2022). Indigenous Sacred Heritage on the National Level: Federal Canadian Law and Canadian Museums. In: Repatriation of Sacred Indigenous Cultural Heritage and the Law. Studies in Art, Heritage, Law and the Market, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-030-89047-6_6
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