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

Natasha Bakht and Lynda Collins

(2017) 62:3 McGill Law Journal

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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About the Authors:

Natasha Bakht teaches criminal law, family law, and multicultural rights. Her research interests are generally in the area of law, culture and minority rights, and specifically in the intersecting area of religious freedom and women’s equality. She has written extensively on the issue of religious arbitration in family law. A regular researcher with the National Judicial Institute where she has assists in judicial education on sentencing, demeanour, evidence, and matters of faith and culture. Professor Bakht is also a member of the Law Program Committee of the Women’s Legal Education and Action Fund (LEAF).

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Lynda M. Collins is a Professor with the Centre for Environmental Law & Global Sustainability at the University of Ottawa Faculty of Law. Professor Collins is one of Canada's leading experts in the law and policy of toxic torts. She has published in Canada, the US, and Australia on a wide variety of issues in toxic torts, with a particular focus on the law of toxic causation. She has also participated in environmental hearings and consultative processes at the Canadian House of Commons and Senate, the European Parliament, and the United Nations.

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