Vol. 16 No.1 (January 2006), pp.99-101
FIRST NATIONS SACRED SITES IN CANADA’S COURTS, by Michael Lee Ross. Vancouver: UBC Press, 2005. 248pp. Cloth $85.00 CAD/US. ISBN: 0-7748-1129-3. Paper $29.95 CAD/US. ISBN: 0-7748-1130-7.
Reviewed by John D. Whyte, Saskatchewan Institute of Public Policy, University of Regina. E-mail: john.whyte [at] uregina.ca
Much of this work is very technical, and the rewards are elusive although, when grasped, are deeply significant. The bulk of Michael Lee Ross’ FIRST NATIONS SACRED SITES IN CANADA’S COURTS is a painstaking description of legal cases – each judge’s opinion at each level of decision is parsed and analyzed to the full extent of every judicial expository frailty or, happily enough when they occur, every element of intellectual imagination, cultural understanding or subtlety in normative development. The cases receiving this detailed treatment are decisions of the British Columbia courts relating to Aboriginal (specifically, First Nations) land claims.
At the centre of this careful work is a comparison, in terms of both litigation effectiveness and differences in First Nations understanding of bases of entitlement, of two legal strategies. These are the MEARES strategy (after the MEARES ISLAND case) and the HAIDA strategy (after the TAKU RIVER and HAIDA cases). The former strategy is based on the seeking of interlocutory injunctions against development on specific lands through the registration of a First Nation’s unextinguished interest in, or title to, the land. The resulting litigation – at least so far – does not deal directly with the strength of title claims but with the relative weight of the competing interests in either granting or withholding an injunction until the issue of title can be judicially, or politically, resolved. The HAIDA strategy, on the other hand, is not grounded on the idea of irreparable loss, or harm, to property interests, but on the idea that government licenses for land development and land use have been issued without fulfilling constitutional obligations to consult with affected First Nations over adequate recognition and protection of their interests. The distinction is between a claim based on a substantive entitlement to certain land interests that cannot be ignored or destroyed through activity that is irreversibly harmful and a claim that, in essence, asserts the irreducibility of First Nation political entitlement to participate in regulation that affects key interests. One strategy is that of an interest holder and the other that of a self-determining distinct political society. The former strategy relies on obtaining current recognition and protection for what an indigenous people once unequivocally held and the latter strategy relies on the idea of protecting what an indigenous people once unequivocally were.
From the perspective of determining the most authentic form of the politics (and jurisprudence) of recognition, there is probably no basis for preferring political identity over recognition of property interests. Both speak to the idea of a [*100] fully normative, self-regulating society prior to settlement and to the idea that, however horrible the practices of colonization, it is still possible to restore partial dignity of both the settler society and the indigenous society through accepting the non-assimilationist reality of continuing political authority and collective entitlement. In truth, Ross hardly relates his detailed account of case law to these broader constitutional (or inter-societal) meanings, with the result that the effort of sifting through the details of lawyers’ arguments and courts’ justifications is scantily rewarded, apart from the joy of having a detailed knowledge of a complex body of jurisprudence, a reward that is not to be dismissed lightly if one is responsible for tendering legal advice.
Ross is a little bolder in assessing the effectiveness of the two strategies in terms of which best vindicates First Nations’ interests. He identifies the higher and more respectful level of inter-cultural relating that takes place under the HAIDA strategy. That strategy is based on the Supreme Court of Canada’s elaboration on the recognition of Aboriginal rights in section 35(1) of the Constitution Act, 1982. This judicial development goes beyond simply placing a restraint on the state’s extinguishment powers or a guarantee of a freedom to exercise rights. It establishes an on-going role, through political and regulatory participation, in the state processes that engage vital interests. The state must not only recognize rights. It must consult with First Nations political institutions about those rights in order to completely avoid infringement or, if state limitation of a right is compelling or essential, to ensure sensitivity to, and respect for, Aboriginal rights. In other words, the HAIDA strategy more explicitly constructs validation of First Nations political authority, as well as of reconciliation and an on-going relationship based on mutual acceptance.
Although the account of legal cases dominates this book, it is not the whole book, nor is it its primary intellectual project. As the title suggests, Ross is interested in the capacity of the Canadian legal process to grasp the concept of sacred sites and to factor that concept into its legal order. Ross’ interest in the MEARES and HAIDA strategies is not just to determine the greater effectiveness in protecting First Nations land interests, but in exploring which shows greater promise in grasping and honouring the idea of sacred sites. However, at the end of his work he states that under both strategies there is insufficient sensitivity to the nature of the claim for the protection of sacred sites, and he notes the judicial failure of cultural understanding that lies at the heart of the failure to recognize the weight of claims to preserve sacred sites. And, of course, he is right. Courts’ understanding of what sacred sites are is deplorable. Courts’ treatment of sacred sites is unfair and betrays an epistemological bias against First Nations people. To most courts a claim to protect a sacred site is heard simply as a hyper claim – a mere rhetorical convenience, perhaps – and is not placed in the context of preserving essential identity or preserving the right relationship with community and Creation. Of course, it takes new [*101] cultural understanding to understand land as not simply the currency of economic transactions but as space where humans have sought to experience, and have experienced, connection to the spiritual, the transcendent and the eternal – space that the greater spirit behind our existence has identified as the place in which (and more importantly, through which) the experiences of atonement and redemption might be fashioned.
Ross, the cultural bridge-builder is, naturally, less pedestrian than Ross, the lawyer. His search for a key to cross-cultural understanding of sacred sites is more artful, elliptical and lyrical (although he is also relentlessly repetitive). In the competition for resources there is bound to be skepticism over any claim and over the provenance under which it is made. But there is a deeper malaise in this failure to respect the struggle to protect sacred sites. We are well used to accommodating claims based on deep cultural differences when we harbour a sense of respect for the people whose customs we are asked to accept. The experience of colonizing indigenous peoples however is not one that has produced respect. In fact, respect would have slowed down the process of exploiting a new land. We used every form of denigration to strip away respect for Aboriginal people and their cultures, social order, languages, religions and sources of strength and identity. We believe that we have moved past the period of destructive colonization, but what clearly lingers is the notion that indigenous instruments of spiritual experience, unlike our major systems of faith, can still legitimately be negotiated away in the face of the imperatives of markets and economic development. Although Ross, at the end of his work, claims to be hopeful about reforming the courts’ approach to claims to protect sacred sites, his book does not produce a basis for hope that we will soon factor into the jurisprudence of First Nations relations the ideas of living on blessed land, or of having a spiritual relationship with land.
TAKU RIVER TLINGIT FIRST NATION v. BRITISH COLUMBIA (PROJECT ASSESSMENT DIRECTOR),  3 S.C.R. 550.
HAIDA NATION v. BRITISH COLUMBIA (MINISTER OF FINANCE),  3 S.C.R. 511.
MACMILLAN BLOEDEL v. MULLIN (Meares Island case),  3 W.W.R. 577 (B.C.C.A.).
© Copyright 2006 by the author, John D. Whyte.