Religious Freedom in the New World? Indigenous Sacred Sites and Religious Beliefs in the Courts in British Columbia

Abstract

The process of colonization in British Columbia and Canada included the use of law and policy to suppress indigenous religious belief and practice, with devastating effects on indigenous communities. Today indigenous people are revitalizing their cultures, and seeking legal protection for their sacred places and religious beliefs. The Supreme Court of Canada has directed governments to take steps to protect and preserve indigenous cultures and ways of life. The national Truth and Reconciliation Commission brought to light the mechanisms of religious intolerance against indigenous people and issued ninety-four calls to action. And the United Nations and other inter and transnational bodies have developed soft law instruments for the protection of sacred sites and religious diversity. So far, however, the lower courts and political institutions in British Columbia have been reluctant to change the status quo. The present paper surveys the lower court reasons rejecting indigenous claims, and points to some of the underlying historical legacies, cultural attitudes, evidentiary and procedural obstacles, and economic rationales that inform those reasons. Four emerging trends that may help indigenous people move the law towards greater protection of their sacred sites and religious beliefs are identified and discussed. In doing so, the paper also touches on broader topics, including for example the legal treatment of religious minorities within States; the limits on religious freedom in constitutional democracies; the apparent conflict between economic priorities and the protection of cultural sites; and the relationship between international and domestic law on the protection of religious and cultural diversity.