Arguing Indigenous Rights Outside Section 35: Can Religious Freedom Ground Indigenous Land Rights, and What Else Lies Ahead?

Abstract

The November 2017 decision of the Supreme Court of Canada in the Ktunaxa Nation case saw Canada’s highest court reject an Indigenous community’s claim to have the use of certain land restricted on account of the spiritual significance of certain sites to the community. This paper examines why Indigenous communities might wish to argue land issues grounded in religious freedom rather than under the s. 35 Indigenous rights clause, why this claim was unsuccessful (including factors related to the Supreme Court of Canada’s selective use of legal sources), and how there might nonetheless remain longer-term potential for such claims. Both provisions of the UN Declaration on the Rights of Indigenous Peoples that bear on Indigenous religious freedom and some jurisprudential developments in other states considering issues involving Indigenous religious freedom could yet ground such arguments being brought back. More generally, in light of some other Canadian cases as well, there are ongoing reasons to think about the possibility of Indigenous rights claims being put other than under s. 35.

Keywords: religious freedom, religious liberty, Indigenous rights, sacred sites, UNDRIP