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

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.

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