Vol. 21 No. 8 (August, 2011) pp.453-455
PROTECTION OF FIRST NATIONS CULTURAL HERITAGE: LAWS, POLICY, AND REFORM, by
Catherine Bell and Robert K. Paterson (eds).
Vancouver: UBC Press, 2009. 464pp.
Hardcover. CDN$85.00/US$94.00. ISBN: 9780774814638.
Paperback. CDN$34.95/US$34.95. ISBN: 9780774814645.
Reviewed by Christa Scholtz, Department of Political Science, McGill University.
Email: christa.scholtz [at] mcgill.ca.
Editors Catherine Bell and Robert K. Paterson have put together a very
thoughtful, valuable, and informative collection on the protection of First
Nations cultural heritage. While
only the names of the editors are on the book jacket, this publication is the
heavy fruit of close collaboration and partnership between legal scholars,
anthropologists, at least one archeologist, and First Nations communities. The
First Nations research partners are the Hul’qumi’num Treaty Group, the Ktunaxa
Nation, the Luuxhon House/Gitanyow, the Mookakin Cultural Society (Kainai
Nation), the Oldman River Cultural Society of the Piikani Nation, and the
U’mista Cultural Society. The depth
of analysis and nuance conveyed in this volume would have been impossible
without such a layered collaboration, and it is this which distinguishes the
publication from the many other academic volumes on First Peoples and the law,
in Canada and elsewhere.
This is the second volume in a two-part series on cultural heritage.
Where the first volume (edited by Catherine Bell and Val Napoleon)
features detailed community case studies and First Nations voices more directly,
this second volume primarily bears the imprint and voice of its legal academic
expertise. This second volume
examines how First Nations cultural heritage exists at the intersection of
“First Nations laws, the common law of property, aboriginal constitutional
rights, and federal and provincial property and other legislation” (p.3). This
“complex web” (Bell and Paterson at p.3) is examined with respect to four key
heritage issues or categories: the repatriation and trade in First Nations
material culture; the treatment of heritage sites and ancestral remains;
intangible heritage, defined here as traditional knowledge and intellectual
property; and international human rights law and policy. The authors thus
address a wide range of issues, but a unifying message is heard throughout. That
is, the authors struggle with the limitations of these regimes.
It is first voiced in the preface by Chippewa scholar Darlene Johnston,
when she writes “… I remember a time when … I believed that law was the answer”
(p.vii). While many of the authors have dedicated their academic lives to legal
study, this is not a tome by a law school cheerleading squad.
The protections and advantages of law are never untethered here from
their very real limitations and impediments, including possible
incommensurabilities between First Nations conceptions of their heritage and
those of settler law (Ziff and Hope, at p.196). Instead, there are issues which
recur and defy legalistic resolution (Paterson at p.172).
In light of this serious consideration of law as a [*454] necessary
imperfection, chapters on non-legal instruments (Bannister at p.278) and a
re-embedded political approach to cultural heritage protection (Napoleon at
p.370) are critical parts of a broader reform agenda.
While the volume chiefly concerns itself with the Canadian context, this should
be of definite interest to scholars elsewhere.
The study of indigenous peoples and settler law in Canada has always
included consideration of legal developments outside its borders, especially of
other countries in the British Commonwealth, and of the United States. This
volume continues this comparative tradition, as the table of cases attests.
The comparative ethos is also expanded by the inclusion of a chapter on
the cultural heritage regime in the United States under the Native American
Graves Protection and Repatriation Act (Nafzinger, p.110).
The American experience is evaluated in terms of its weaknesses and
strengths, especially how the collaborative nature of its drafting has supported
on-going collaboration during its implementation. In the section on intangible
cultural property, authors Howell and Ripley use the Australian case to show how
current intellectual property regimes can offer limited protection to indigenous
artists and communities under specific circumstances.
However, they make it clear that an intellectual property regime designed
to promote innovation by protecting individual or commercial exclusivity for a
defined and limited period of time is insufficient to protect much intangible
cultural heritage that indigenous communities value.
While Australian cases are key here, their analysis is germane to other
national cases, as the national intellectual property law is structured by
common international conventions.
Finally, the framing of indigenous cultural heritage protection as one of human
rights, and therefore of interest to the international human rights legal
community, broadens the focus once again.
Here First Nations heritage protection is embedded in a global struggle
of cultural and fundamentally political survival (al Attar, Aylwin, and Coombe,
p.311).
If there is a weakness here, it is not in execution or in analytical quality; it
lies simply in the reality that no one volume can be all things to all people.
While the volume’s subtitle includes the word “policy”, what is explored
here is a lawyer’s vision of policy as equated with, or limited to, legislation.
While legislation tries to set out the black and white, most often policy
lives in the margins of grey, where policy makers have varying degrees of
discretion. While there is much here that should be of interest to policy
makers, including much language on the importance of balancing interests and
seeking negotiated non-legalistic agreements, government policy makers must
glean on their own how to put into effect a cultural heritage policy, including
conventions for collaboration and discussion.
The list of contributors (p.419) enumerates much important expertise, but
to my reading one area of expertise that is not represented here is time spent
in government trenches. Of the
considerable experience on which this volume rests, it does not include time
spent in ministerial or departmental meetings, in the unfashionable and often
tedious bureaucratic bargaining where the balancing of interests either happens
or loses out. [*455]
If the primary danger of edited volumes is to produce something which hangs
together, which coheres, then editors Bell and Paterson have cleared their
hardest hurdle. I found the organization of the volume to be smart, transitions
between chapters to be smooth, and cross-referencing across authors to be useful
rather than distracting. I am pleased to have this, and its companion volume, on
my shelf, not just because of its substance, but also because of its
readability.
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© Copyright 2011 by the author, Christa Scholtz.