Religious Freedom and Sacred Lands

Abstract

Taking Ktunaxa Nation v. British Columbia as a focal point, the author argues that the legal framing of Indigenous sacred land claims in terms of religious freedom carries significant costs. It impels courts to bracket consideration of sovereignty and territorial rights, while positioning Indigenous worldviews as nonrational rather than as dynamic intellectual traditions and ways of life that are respectably different from those embodied in settler systems of law. Genuinely fair adjudication of such claims requires not religious exemptions from general laws but recognition of the sui generis rights of Indigenous nations in relation to lands they never ceded (acknowledging historical injustice); deep differences between dominant European settler and Indigenous cultures (acknowledging that settler law is also cultural); and the validity of Indigenous environmental philosophies (acknowledging that they are no less rational than Western ones).