Indigenous Sacred Sites & Lands: Pursuing Preservation Through Colonial Constitutional Frameworks

• Author: Chase Blair
• Position: Completed his JD degree at Thompson Rivers University, Faculty of Law in 2019, after obtaining his BA from the University of Victoria in 2015
• Pages: 73-88

APPEAL VOLUME 25

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73

ARTICLE

INDIGENOUS SACRED SITES & LANDS:

PURSUING PRESERVATION THROUGH

COLONIAL CONSTITUTIONAL

FRAMEWORKS

Chase Blair *

CITED: (2020) 25 Appeal 73

ABSTRACT

Sacred sites and lands a re vital to the spiritualities of ma ny Indigenous peoples in Canada.

However, colonial conceptions of land ownership, land u se, and religion have worked

in concert to stie the preser vation of Indigenous sacred sites a nd lands. is ar ticle

examines t hree options, based in t he Constitution Act, 1982, that Indigenous peoples in

Canada may pursue to pre serve their sacred sites a nd lands: the section 35 title option,

the section 35 rights option, and the sect ion 2(a) Charter option. is paper sugges ts that

the legal fra meworks associate d with each option perpetu ate colonial values, whet her it

is the disposses sion of land, the belief that land is only a commod ity, or the superiority of

Christian ity over Indigenous spiritua lities. By constructi ng legal fra meworks that mak e

the preservation of sacred sites a nd lands so dicu lt, Indigenous spiritua lities are only

further oppressed by t he Canadian state.

INTRODUCTION

Indigenous spiritual ities have long been targeted by the Cana dian state, whether through

the seizure of sacred la nds, the criminaliz ation of spiritual practices, or the persec ution of

Indigenous spi ritual leaders .1 Additionally, mandatory attendance at residential s chools—

institutions based on t he “assumption that Europea n civilization and Christi an religions

were superior to Aboriginal c ulture”—was used to disconnect Indi genous children from

their traditional s piritual lands, sites, and practice s.2 e Canadian state has sinc e issued

a formal apology to Indi genous peoples, recogniz ing the economic, political, social, and

spiritual harm s wrought by residential schools.3

* Chase Blair completed his JD de gree at Thompson Rivers Univers ity, Faculty of Law in 2019, after

obtaining his BA from the Univer sity of Victoria in 2015. He thanks Sarah Pike, his fri ends, and the

Editorial Board of Appeal for their he lpful feedback with this arti cle.

1 Truth and Reconciliation Commission of Canada, “Hon ouring the Truth, Reconciling for the Future

Summary of the Final Repo rt of the Truth and Reconciliation Commission o f Canada,” (31 May

2015) 1–2, online (pdf): <http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_

Summary_2015_05_31_web_o.pdf> [TRC Summary] archived at [https://perma.cc/Z3HS-BU8J].

2 Ibid at 4.

3 Government of Canada, “Prime Minister Har per oers full apology on be half of Canadians for the

Indian Residential Schoo ls system,” (11 June 2008), online: <http://www.aadnc-aandc.gc.ca /eng/

1100100015644/1100100015649> archived at [https://perma.cc/2D5X-WAHS].

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APPEAL VOLUME 25

Despite this formal rec ognition of wrongdoing and the legaliz ation of Indigenous spiritual

practices, colonia l ideas persist, and Ind igenous spiritualitie s are still deva lued and

suppressed. In this a rticle, I discuss the colonia l ideas entrenched in the Canadia n judiciary,

focusing specic ally on how three lega l frameworks u sed to interpret constitutiona l

rights—the s ection 35 Aboriginal title test, the sect ion 35 Aboriginal right s test, and the

section 2(a) Char ter freedom of religion test—impact Indigenous spiritua lities.4

In Part I, I outline the va lues held by those who colonized Ca nada, including t heir

conceptions of land ownership, land us e, and religion. In Part II, I briey summar ize the

historical use s of the law to suppress Indigenous spiritualitie s. Part III describes how each of

the three aforementioned lega l frameworks reect colonia l values and suppress Indigenous

spiritualities by ma king it exceed ingly dicu lt for Indigenous groups to preserve5 thei r

sacred sites and lands. Fir st, I demonstrate that both of the section 35 framework s reect

colonial values, whet her it is the dispossession of la nd or the belief that land i s only a

commodity. Second, using the ca se study of Ktunaxa,6 I demonstrate that the sec tion 2(a)

Charter freedom of religion f ramework reects colonial conceptions of land use, f avours

Christian c onceptions of religion, and devalues I ndigenous spiritualities.7

I. THE VALUES OF COLONIALISM & CONCEPTIONS OF

RELIGION

A. Dispossession of Land

Europeans viewe d the New World as a land rich in resource s, ready to be settled by

their citizens. However, to ful ly exploit the resources of the New World and settle a

new populat ion, disposse ssing Ind igenous peoples of their land s was nece ssar y. Two

worldviews worked in tandem to just ify this d ispossession: the Doct rine of Discovery

and the phi losophy of John Locke.

Under the Doctrine of Discovery, the rst Europe an Christia n nation to discover non-

Christian la nds had a pre-emptive right— against a ll other Christi an nations— over the

“indels” and the la nds that they occupied.8 A benecia l right of occupancy, or something

resembling legal t itle, was crystal lized upon rst landing at t he beach and justied base d on a

perception that Indigenous peoples were spirit ually inferior to their Christ ian counterparts.

9

4 Indigenous peoples in Canada may also use se ction 35 treaty rights to seek cons titutional

protection of their sa cred sites and lands. However, I do not discuss this opti on in the paper, as

treaty rights are not asses sed through a uniform legal test—they a re assessed depending on the

terms of the specic treat y. I discuss the section 35 title framework , section 35 rights framework ,

and section 2(a) Charter fra mework because courts appl y the same legal tests in every r ights

claim uniformly across Canada.

5 In this paper, I use the word “preserve” or “preserv ation” to mean the following: (1) keeping

sacred sites or lands completely free of construction, occupation, or development by humans

(see Ktunaxa Nation, “Qat ’muk Declaration,” (15 November 2010), online: <http://www.ktunaxa.

org/who-we-are/qatmuk-declaration/> [Qat’muk Declaration]), or (2) keeping sacred sites

or lands unoccupied by humans , save for when Indigenous peopl es travel to them to pray,

communicate with gods, visit a ncestors, or otherwise enga ge in other spiritual acts.

6 Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operatio ns), 2017 SCC 54.

7 Ibid.

8 Robert N Clinton, Neil J Newton et al, Ame rican Indian Law: Native Nations and the Federal

Systems: Cases and Materials (Newark: Lexis Nexis, 2005) at 1008.

9 David E Wilkins, “Federal policy, western m ovement, and consequences for Indige nous people,

1790-1920,” inMichael Grossberg, ed, The Cambridge History of Law i n America: Volume II the

Long Nineteenth Century (1789-1920)(Cambridge University Press, 2008) at 210; Matthew Charles

Stamford, The Use of Law in the Destruction of In digenous Religions in Canada and the United States:

A Comparative Perspective (DPLS, University of Sussex, 2012) [unpublished] at 18 [Stamford].