Transcript Crown’s Perspective - OKT | Olthuis Kleer Townshend LLP

Sacred places in
the Treaty
Relationship
Senwung Luk
As Long As The Rivers Flow Conference
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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 […]
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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.
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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.”
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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
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Treaty Relationship
• Enshrining a way for Indigenous
and non-Indigenous Canadians to
live together
• Crown starting point of no rights
outside of reserves
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International Law
• UN Declaration on the Rights of
Indigenous Peoples (2010)
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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.
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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.
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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.
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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.
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International Law
How long will Canada remain an
international pariah?
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Statutory Mechanisms
• In some provinces, cemeteries
legislation protects Aboriginal
burials too
• Sometimes heritage protection
agencies can be helpful
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Confidentiality
• Importance of confidentiality to
traditional knowledge keepers
• Tough choices about whether to
share traditional knowledge with
Crown officials
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Confidentiality
• How can Crown officials earn the
trust of traditional knowledge
holders?
• Amendments to Access to
Information legislation to
specifically provide for
confidentiality?
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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?
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