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 specic 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 briey 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 reect colonia l values and suppress Indigenous
spiritualities by ma king it exceed ingly dicu lt for Indigenous groups to preserve5 thei r
sacred sites and lands. Fir st, I demonstrate that both of the section 35 framework s reect
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 reects 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
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
“indels” and the la nds that they occupied.8 A benecia l right of occupancy, or something
resembling legal t itle, was crystal lized upon rst landing at t he beach and justied 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 specic 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.
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,” inMichael 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].