Sacred places in the Treaty Relationship Senwung Luk As Long As The Rivers Flow Conference

Focus on the Treaty surrender clause: Crown’s Perspective Focus 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 […]

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.

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.”

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

Treaty Relationship Enshrining a way for Indigenous and non-Indigenous Canadians to live together Crown starting point of no rights outside of reserves

UN Declaration on the Rights of Indigenous Peoples (2010) International Law UN Declaration on the Rights of Indigenous Peoples (2010)

International Law Article 10 Indigenous 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.

International Law Article 11 Indigenous 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.

International Law Article 12 Indigenous 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.

International Law Article 25 Indigenous 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.

How long will Canada remain an international pariah? International Law How long will Canada remain an international pariah?

Statutory Mechanisms In some provinces, cemeteries legislation protects Aboriginal burials too Sometimes heritage protection agencies can be helpful

Confidentiality Importance of confidentiality to traditional knowledge keepers Tough choices about whether to share traditional knowledge with Crown officials

Confidentiality How can Crown officials earn the trust of traditional knowledge holders? Amendments to Access to Information legislation to specifically provide for confidentiality?

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?