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

AuthorChase Blair
PositionCompleted his JD degree at Thompson Rivers University, Faculty of Law in 2019, after obtaining his BA from the University of Victoria in 2015
Chase Blair *
CITED: (2020) 25 Appeal 73
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.
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): <
Summary_2015_05_31_web_o.pdf> [TRC Summary] archived at [].
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: < /eng/
1100100015644/1100100015649> archived at [].
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
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.
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].

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