Module 3: Creation and Curation
Legal Frameworks
Canadian copyright laws
Following the existing intellectual property laws of Canada is usually not enough when referring to Indigenous Peoples and avoiding misappropriation.
Learner notes
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.”
Learner notes
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)
Examples
There are three primary documents and laws that help protect Indigenous Traditional Knowledges in Canada.
Module 1: Ethical and Legal Considerations provides an indepth understanding of the legal issues in relation to copyright laws in Canada.
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.
Learner notes
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 exis