1

Sacred places in the Treaty

RelationshipSenwung Luk

As Long As The Rivers Flow Conference

Crown’s PerspectiveFocus on the Treaty surrender clause:

[…] the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands included within the following limits […]

2

SCC Principles of Treaty Interpretation

The bottom line is the Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the […] interests [of the First Nations party] and those of the British Crown.

R v Marshall (1999) para 19.

3

Intention behind Treaty 8?

Words of Crown Treaty Commissioners:• “We assured them that the treaty would

not lead to any forced interference with their mode of life”

• “It would have been impossible to have made a treaty if we had not assured them that there was no intention of confining them to reserves.”

4

Case law

• Only small number of cases reading relationship between Treaties and sacred places

• Hiawatha FN v Ontario (2007): found that a surrender clause in Williams Treaties of 1923 meant that the First Nations had surrendered their rights to preserve burial sites

5

Treaty Relationship

• Enshrining a way for Indigenous and non-Indigenous Canadians to live together

• Crown starting point of no rights outside of reserves

6

International Law

• UN Declaration on the Rights of Indigenous Peoples (2010)

7

International Law

Article 10Indigenous peoples shall not be forcibly

removed from their lands or territories. No relocation shall take place without the free,

prior and informed consent of the indigenous peoples concerned and after agreement on

just and fair compensation and, where possible, with the option of return.

8

International Law

Article 11Indigenous peoples have the right to practise and

revitalize their cultural traditions and customs. This includes the right to maintain, protect and

develop the past, present and future manifestations of their cultures, such as

archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and

performing arts and literature.

9

International Law

Article 12Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and

religious traditions, customs and ceremonies; the right to maintain, protect, and have access in

privacy to their religious and cultural sites; the right to the use and control of their ceremonial

objects; and the right to the repatriation of their human remains.

10

International Law

Article 25Indigenous peoples have the right to maintain

and strengthen their distinctive spiritual relationship with their traditionally owned or

otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities

to future generations in this regard.

11

International Law

How long will Canada remain an international pariah?

12

Statutory Mechanisms

• In some provinces, cemeteries legislation protects Aboriginal burials too

• Sometimes heritage protection agencies can be helpful

13

Confidentiality

• Importance of confidentiality to traditional knowledge keepers

• Tough choices about whether to share traditional knowledge with Crown officials

14

Confidentiality

• How can Crown officials earn the trust of traditional knowledge holders?

• Amendments to Access to Information legislation to specifically provide for confidentiality?

15

Looking to England for inspiration…

• “Consecrated land” in England under Church of England jurisdiction, outside of jurisdiction of civil courts

• How would it look if Canadian law were respectful of Indigenous legal traditions with respect to sacred places?

16

17

18

19