IMPLEMENTATION & GOVERNANCE CHALLENGES IN CANADA RESPECTING UNDRIP ARTICLE 31.

• Author: Dylan, Daniel W.
• Position: United Nations Declaration on the Rights of Indigenous Peoples

Although occasionally Eurocentric thinkers and lawyers are aware that their governments are artificial constructs, they violently resist remaking these constructs. In fact and theory, they usually deny that their governments can be reimagined or modified to be more democratic or inclusive. Faced with the realization that some Indigenous idea or action might compete with their constructs, they evoke the Hobbesian nightmare of the chaos that would follow if they were to change the existing order. It is not the chaos they fear, but having their contrived superiority challenged.

--Sakej Youngblood Henderson (1)

If you no longer speak your language and no longer practice your culture, then you have no right to demand aboriginal rights from us, because you are assimilated with the ruling power.

--Rene Levesque and Pierre E. Trudeau (2)

Introduction

In November 2010, Canada endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) after previously refraining from doing so (along with the United States, Australia, and New Zealand). (3) UNDRIP is an international declaration which provides recognition for various indigenous peoples' rights under international law and sets "... the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world." (4) The declaration is expansive and, although not a treaty or a convention, and thus (technically) non-legally binding, obligates endorsing states to take various measures to ensure that the rights provided under the declaration are respected in and by domestic law in each of their respective jurisdictions. (5) In June 2015, the Canadian Truth and Reconciliation Commission called "... upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation." (6) Then, in November of 2015, through a series of mandate letters, the Canadian Prime Minister instructed the federal Crown Canada Indigenous Relations & Northern Affairs (CIRNAC) Minister (as well as other federal ministers) to "implement" UNDRIP, and several months later, in May 2016, the CIRNAC Minister declared that "... Canada is now a full supporter, without qualification, of the declaration." (7) In May 2018, Romeo Saganash, Member of Parliament for Abitibi--Baie-James--Nunavik--Eeyou (Quebec) sponsored Bill C262--a private member's bill--or the United Nations Declaration on the Rights of Indigenous Peoples Act, which describes itself as an act "... to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples." (8) The bill passed third reading in the House of Commons and is awaiting Senate readings and Royal Assent following what is likely to be Senate approval. (9) According to Bill C-262, UNDRIP is "... affirmed as a universal international human rights instrument with application in Canadian law." (10) Sections 4 and 5 of Bill C-262 require Canada, in consultation and cooperation with indigenous peoples in Canada, to take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP and to develop and implement a national action plan to achieve the objectives of UNDRIP. (11) Evidently, the focus of Bill C-262 is on UNDRIP implementation in Canada and the latent assumption inherent in the bill--not necessarily faulty--is that all of the contents of UNDRIP and the rights prescribed therein are within the legislative jurisdiction of Canada to harmonize with domestic law. (12) Such an implementation initiative and that of a national action plan (even if not viewed as a federal undertaking) raises a number of significant and complicated practical legal questions mostly respecting legislative jurisdiction; (13) however, even if Bill C-262 were not to receive Royal Assent, despite the non-binding nature of the UNDRIP, Canada would still be faced with the implementation obligations that its endorsement of UNDRIP imposes. Thus, the legal issues respecting implementation raised by UNDRIP endorsement and these jurisdictional questions would persist even in the absence of Bill C-262 receiving Royal Assent. (14) The federal government's "Overview of a Recognition and Implementation of Indigenous Rights Framework" seems to affirm the same. (15)

This article, however, is not concerned with raising such legal questions, or much less answering them, and instead focuses on the questions related to the implementation of UNDRIP Article 31, which is most succinctly described as the provisions which provide intellectual property rights to indigenous peoples and which ensure the recognition and protection of those rights by respective endorsing states. The implementation of Article 31 in Canada presents intricate legal questions that revolve around not only how Article 31 ought to or might be implemented, but also around which level of government properly has legislative jurisdiction to implement measures respecting indigenous peoples' right "... to maintain, control, protect and develop their intellectual property over ... cultural heritage, traditional knowledge, and traditional cultural expressions." (16)

To overcome the difficult and problematic answers that Article 31 implementation questions generate, following the model provided by the Canadian Council of Ministers of the Environment (CCME), (17) this article proposes, from an instrumental and pragmatic perspective, that the federal government should assume, under Section 91(24) of the 1867 Act, (18) exclusive legislative jurisdiction to harmonize with existing Canadian law, indigenous cultural heritage, traditional knowledge, traditional cultural expressions, and, under the auspices of the Canadian Intellectual

Property Office, create an Office of Indigenous Knowledge Governance to strategically work with provincial and territorial governments and, most significantly, indigenous peoples and communities throughout the country, to coordinate the implementation and meet the mandates of Article 31. This article begins with a discussion of the rights provided to indigenous peoples in and by UNDRIP Article 31 in Part I. Part II then discusses and analyzes the problems that reconciling indigenous knowledge with Canada's existing intellectual property rights regime presents, and Part III discusses implementation and governance challenges that Article 31 presents in light of Canada's constitutional framework. Finally, Part IV proposes a first step to a solution that could be incorporated in any normative national action plan the federal government undertakes to meet its UNDRIP implementation obligations.

1. Understanding UNDRIP ARTICLE 31

   A sufficient amount of scholarly attention and criticism has been devoted to the "internationalization" of indigenous rights as a result of UNDRIP and its status as a state-centered instrument embedded in Western liberal democracies; (19) however, what makes UNDRIP unlike other international instruments is that it was drafted with intensive indigenous participation. (20) As a result, the text of the declaration contains language that indigenous peoples themselves were involved in drafting. (21) As previously noted, UNDRIP Article 31 can be described as containing the provisions which provide intellectual property rights to indigenous peoples and which ensure the recognition and protection of those rights by respective endorsing states. It is necessary and important to examine the two separate sections that comprise Article 31 in their entirety. Section 1 provides the following:

   Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations 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. (22) As can be seen from the above, Section 1 is expansive and provides a broad array of rights across a broad spectrum of interests. Significant here, in the context of this article, are the rights of indigenous peoples "... to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions [as well as manifestations of the other phenomena listed]" and "... to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions." (23) For the purposes of this article, I will focus on the latter of these rights, namely the right to maintain, control, protect, and develop intellectual property over cultural heritage, traditional knowledge, and traditional cultural expressions, and in so doing, I am including in this analysis the right to maintain, control, protect, and develop cultural heritage, traditional knowledge, and traditional cultural expressions, and the other phenomena listed in the first part of Article 31(1) because Canada's existing system of laws and government seem to provide no other legal or practical means of protecting human endeavours, creative or otherwise, except through the intellectual property rights regime. Stated another way, cultural properties and expression--or at least those which qualify for legal protection--are protected by intellectual property rights in Canada, and that is it. In totality. As a result, the solution proposed in this article is very much one borne from an instrumentalist perspective. (24) Despite the value to be found in such an approach, there are detractions to employing it, including the...