THE CANADIAN CONSTITUTION
Written by David Robbins, B.A., L.L.B.
The views expressed herein are solely the views of the author. David Robbins is currently a judicial law
clerk of the British Columbia Supreme Court. He will be joining Woodward & Co. in Victoria, B.C. in the
fall of 2000.
© 1999 D. Robbins.
Under the Australian Copyright Act, aboriginal artists have brought lawsuits to stop the
unauthorized use of their works in the manufacture of t-shirts, carpets, fabrics and bank notes.
These aboriginal copyright cases reflect the now widespread problem of the misuse of
aboriginal art in Australia and internationally. But the newfound popularity of aboriginal designs
has raised legal questions well beyond copyright infringement. The Australian cases show that
infringement of the customary law of aboriginal nations has moved to the forefront of related
This paper considers the problem of domestic and international non-compliance with aboriginal
customary law regarding traditional designs, ritual knowledge and other intellectual property. It
begins by outlining the general failure of domestic and international copyright law to provide a
legal solution. It follows with discussion of the Galinbingu people’s recent success in the
breakthrough Australian decision Bulun Bulun v. R. & T. Textiles Pty. Ltd. The author then
argues that Canadian law provides a unique basis for solution as the rights of aboriginal peoples
in Canada are protected under s. 35(1) of Constitution Act, 1982.
In particular, the Supreme Court of Canada’s 1997 decision in Delgamuukw v. British Columbia
infused greater flexibility into the law of aboriginal rights. Case law now suggests three general
legal requirements exist for a successful novel claim under s. 35(1). In light of these
requirements, this paper argues that aboriginal people