The Rationale for Safeguarding the Indigenous Cultural Heritage The UNESCO Convention for the Safeguarding of the Intangible Cultural

Her-itage, in paragraph 1 of Article 2, defijines intangible cultural heritage as follows:

practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmit-ted from generation to generation, is constantly recreatransmit-ted by communi-ties and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human crea-tivity.13

The second paragraph of the article states: “The ‘intangible cultural heritage’, as defijined in paragraph 1 above, is manifested inter alia in the following do-mains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices,

ritu-12 I. Altamirano-Jiménez, Indigenous Encounters with Neoliberalism. Place, Women, and the Environment in Canada and Mexico (UBC Press 2013).

13 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003), art. 2, para. 1.

als and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship”.14 Signifijicantly, the elements chosen for consideration in the Convention are confijined to those that are “compat-ible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development”.15

Finland ratifijied the Convention in 2013. The instrument obligates states parties to preserve, recognize, document and draw up inventories of the in-tangible cultural heritage. Safeguarding also requires protection, research and enhancement of that heritage. Implementation of the Convention in Finland is the responsibility of the National Board of Antiquities. However, the former president of the Sámi Parliament, Juvvá Lemet (Klemetti Näkkäläjärvi) has proposed that management of the Sámi intangible cultural heritage should be entrusted to the Sámi Parliament, arguing that the Finnish Constitution, the UN Declaration on the Rights of Indigenous Peoples (2007) and Article 1 of the International Covenant on Civil and Political Rights (1976) point to such an arrangement. He has also pointed out that “the intangible cultural heritage in the case of Sámi culture cannot be safeguarded merely by storing documents telling about it or other archival and museum records or by doing research on Sámi culture. The protection of the Sámi intangible cultural heritage requires that its maintenance be supported through funding, administrative solutions and improved legislation”.16

A study by the Expert Mechanism on the Rights of Indigenous Peoples ( EMRIP) study titled “Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage”17 has noted that one can see increased attention to and recognition of the relationship between communi-ties and cultural heritage. The report also points out that the Council of Europe Framework Convention on the Value of Cultural Heritage for Society defijines cultural heritage as “a group of resources inherited from the past which people

14 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003), art. 2, para. 2.

15 F. Lenzerini, 2011.

16 Juvvá Lemet, K. Näkkäläjärvi. Puhe eduskunnan sivistysvaliokunnalle Unescon aineet-toman kulttuuriperinnön suojelusopimuksen ratifijioimisesta 15.11.2012 [Speech about the ratifijication of the UNESCO Convention for the Safeguarding the Intangible Cultural Her-itage to the Parliament Committee in 15 November 2012] <http://www.samediggi.fiji/index.

php?option=com_docmanandtask=cat_viewandgid=209andItemid=99999999andmosm sg=Yrit%E4t+p%E4%E4st%E4+sis%E4%E4n+ei+hyv%E4ksytyst%E4+verkko-osoitteest a.+%28www.google.fiji%29> accessed 16 November 2015.

17 A/HRC/EMRIP/2015/2/A/4.

identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions. It includes all aspects of the environment resulting from the interaction between people and places through time”.18 For her part, the Special Rapporteur in the fijield of cul-tural rights has noted that “culcul-tural heritage should be understood as resources enabling the cultural identifijication and development processes of individuals and communities which they, implicitly or explicitly, wish to transmit to future generations”.19

The documentation and classifijication of cultural heritages referred to in international legal discourse has been considered problematic in Indigenous contexts.20 It has been stated in many connections that the distinction be-tween tangible and intangible and bebe-tween cultural and natural heritages is unworkable and even absurd in the case of Indigenous peoples.21 This is also noted in the EMRIP study cited above, which goes on to describe “[i]ndigenous cultural heritage is a holistic and inter-generational concept based on com-mon material and spiritual values influenced by the environment”.22

We argue that if there is a true will to safeguard the cultural heritages of Indigenous peoples such that future generations can engage with the herit-age and feel a connection to previous generations, it must be understood that indigeneity entail to a diffferent way of conceiving of reality and the world; that is, the reality of an Indigenous people is based on a diffferent ontology than that underlying the Western way of seeing the world.23 This being the case, effforts to safeguard the cultural heritage of an Indigenous people should be predicated expressly on the people’s own ontologies and on respect for those ontologies.

18 Council of Europe Framework Convention on the Value of Cultural Heritage for Society, art. 2. Faro, 27.X.2005 Council of Europe Treaty Series – No. 199; A/HRC/EMRIP/2015/2/A/4.

19 Report of the independent expert in the fijield of cultural rights, F. Shaheed. A/HRC/17/38, paras. 4 and 6; A/HRC/EMRIP/2015/1/A/5.

20 See e.g. S. Disko in this volume.

21 E.g. ibid.; See also P. Magga and E. Ojanlatva (eds.) Ealli biras – Elävä ympäristö. Saamelai-nen kulttuuriympäristöohjelma [Living Environment – Sámi Cultural Environment Pro-gram] (Sámi museum – Saamelaismuseosäätiö 2013).

22 A/HRC/EMRIP/2015/2/B/6.

23 See M. Blaser, ‘Ontology and Indigeneity: On the Political Ontology of Heterogeneous As-semblages’ [2014] Cultural Geographies, Vol 21(1), 49-58; T. Ingold, The Perception of the Environment. Essays on Livelihood, Dwelling and Skill (Routledge 2000), 132-152.

3 Belonging to the Sámi Community – the Kinship-based Practice of