Canadian Courts and Cultural Property

Although the rights of native peoples of Canada have yet to be comprehensively defined in Canadian law, most native Canadians assert that their rights include the right not only to govern themselves and their land, but also to exercise ownership rights over movable cultural property—artifacts ranging from domestic implements to ceremonial costumes. custodians such as museums, recent litigation by native Canadians has called such ownership into question.

Canadian courts usually base decisions about ownership on a concept of private property, under which all forms of property are capable of being owned by individuals or by groups functioning legally as individuals. This system is based on a philosophy that encourages the right of owners to use their property as they die. Nevertheless, their children will enjoy the same rights, not as heirs but as communal owners.

Because the concept of collective property assigns ownership to individuals simply because they are members of the community, native Canadians rarely possess the legal documents that the concept of private property requires to demonstrate ownership. Museums, which are likely to possess bills of sale or proof of prior possession to substantiate their the notion of collective property, and that their claims to movable cultural property should be honored.