The Tsilhqot’in Decisions and Indigenous Law on Sacred Spaces

Why are there so many conflicts between Indigenous and non-Indigenous Canadians about sacred spaces and sites?  What are the differences in how Indigenous law sees sacred spaces versus how the Canadian legal system sees them?

In a paper just published in the Supreme Court Law Review, I look at how some of these differences play out, and how the Supreme Court of Canada’s new decision in Tsilhqot’in Nation v British Columbia affects the relationship between Indigenous legal orders and the Canadian legal system.

One of the ways to understand this relationship is to look at how English law – which is the main source of law for the Canadian state – has treated sacred sites in England.  What I found was quite surprising to me: sacred sites are defined by the Church of England under ecclesiastical law, not by the government itself.  Generally speaking, civil law doesn’t apply to those sites.  The governance of the site is up to the Church.  When the government wants to develop a burial site, for example, it usually will get permission from the Church to do so.

What would it look like if the Canadian state treated sacred sites in Canada the same way that the state in England treats English sacred sites?  If it treated Indigenous law about the sacred the same way that English law approaches English law about the sacred? In my paper, I sketch out a rough picture of what that would look like.  Perhaps even more importantly for the present, I talk about how far Canadian law is from reaching that kind of relationship with Indigenous law in Canada.  Canadian law often fails to respect Indigenous law about sacred spaces and, perhaps for that reason, fails to engage with Indigenous knowledge holders to even gain basic information about where those sites might be.

I would suggest that the Supreme Court’s new Tsilhqot’in decision gives hope in this regard, as it explicitly lays out that Canadian law will recognize Indigenous law in determining how Indigenous land rights will be protected under the Canadian constitution.  It keeps the door open to reaching a better, less colonial relationship with Indigenous communities.

The Court also forcefully rejected a view that Indigenous land rights should be restricted to “salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps” that had been put forward earlier by the Crown and accepted by the BC Court of Appeal. I argue that this view is sustainable only if you see North America as essentially empty prior to the arrival of European settlers.

What is especially interesting is that for most of Canada’s colonial history, this kind of thinking would have been thought of as preposterous.  As I show in the article, most of the time, settlers reached agreements with Indigenous people about sharing the land.  The numerous treaties between Indigenous peoples and the Crown are great examples of this kind of relationship.  It is only in the mid-19^th century that settlers began to see the land as empty of people, laws, and stories.

The Supreme Court in Tsilhqot’in is nudging Canadian society forward, away from these destructive patterns of thinking that see North America as empty prior to colonization.  What I have suggested about the parallels with English law provides one way forward.  Time will tell whether Canadian society rises to the challenge and takes the opportunity to chart a better relationship with our Indigenous neighbours.

By Senwung Luk