The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada

27 Pages Posted: 30 Jun 2016 Last revised: 11 Aug 2016

Natasha Bakht

University of Ottawa - Common Law Section

Lynda Margaret Collins

University of Ottawa - Common Law Section

Date Written: June 29, 2016

Abstract

For centuries, the Canadian state and its precursors engaged in systematic religious persecution of Aboriginal peoples through legal prohibitions, coercive residential schooling and the dispossession and destruction of sacred sites. Though the Canadian government has abandoned the criminalization of Aboriginal religious practices, and is beginning to come to grips with the devastating legacy of residential schools, it continues to permit the destruction and desecration of Aboriginal sacred sites. Sacred sites play a crucial role in most Aboriginal cosmologies and communities; they are as necessary to Aboriginal religions as human-made places of worship are to other religious traditions. The ongoing case of Ktunaxa Nation v BC represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion under section 2(a) of the Charter. Building on the ground-breaking work of John Borrows and others, we will argue that Aboriginal spiritual traditions have a home in this provision and merit a level of protection equal to that enjoyed by other faith groups in Canada. In general, section 2(a) will be infringed by non-trivial state (or state-sponsored) interference with an Aboriginal sacred site. Moreover, the approval of commercial or industrial development on an Aboriginal sacred site without consent and compensation will generally be unjustifiable under section 1.

This article is an unedited manuscript and may not be cited without permission.

Keywords: Aboriginal, Indigenous, sacred sites, religious freedom, land, human rights, Charter, environmental rights

Suggested Citation

Bakht, Natasha and Collins, Lynda Margaret, The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada (June 29, 2016). McGill Law Journal, Forthcoming; Ottawa Faculty of Law Working Paper No. 2016-24. Available at SSRN: https://ssrn.com/abstract=2802262 or http://dx.doi.org/10.2139/ssrn.2802262

Natasha Bakht (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Lynda Margaret Collins

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (Phone)

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