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.
© Copyright 2011 by the author, Christa Scholtz.