It’s trite that in a liberal democracy there should be the separation of church and state.
But there isn’t such a separation in the case of Aboriginal religious beliefs, which the Canadian state, through its judiciary, treats preferentially over other religions, particularly Christianity.
Canada’s judiciary is an essential part of the Canadian state.
Section 2 of the Canadian Charter of Rights and Freedoms guarantees freedom of religion.
The intersection of state obligations and Aboriginal religion was the focus of the 2017 Supreme Court of Canada Ktunaxa Nation vs. British Columbia decision.
In that case the Ktunaxa band objected to a ski resort development going ahead in a part of their traditional area of southeastern B.C. (which they called Qat’muk), on the ground that what they believed to be the “Grizzly Bear Spirit” inhabited the area and would be forced away from it or otherwise harmed by the ski resort development. This belief can fairly be characterized as a “pagan” or pantheistic spiritual belief.
The Supreme Court wrote in its decision that “it is undisputed that Grizzly Bear Spirit is central to Ktunaxa religious beliefs and practices.” (italics added).
By this statement the Supreme Court explicitly confirmed that the Ktunaxa “pagan” or pantheistic spiritual belief in the Grizzly Bear Spirit constituted a religious belief in the eyes of Canadian law, and in particular, section 2 of the Charter of Rights and Freedoms.
In other words, as a general principle that must be drawn from this Supreme Court statement, Aboriginal beliefs that are “pagan”, pantheistic or similarly spiritual in nature, even if sometimes minimized or explained away as “cultural” beliefs, , are legally, religious beliefs and are included within the ambit of section 2 of the Charter.
The Court also stated that with respect to Charter religious freedom issues, Aboriginal litigants stand in the same legal position as non-Aboriginal litigants. (But as this article contends, this is not the case in practice.)
The Court further wrote further in relation to the Ktunaxa claim, and to breach of religious freedom cases generally:
“[68] To establish an infringement of the right to freedom of religion, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief.
[69] In this case, it is undisputed that the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit. They also believe that permanent development in Qat’muk will drive this spirit from that place. The Charter protects all sincere religious beliefs and practices, old or new.
[70] The second part of the test, however, is not met in this case. This stage of the analysis requires an objective analysis of the interference caused by the impugned state action…The Ktunaxa must show that the Minister’s decision to approve the development interferes either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. But the Minister’s decision does neither of those things. This case is not concerned with either the freedom to hold a religious belief or to manifest that belief. The claim is rather that s. 2( a ) of the Charter protects the presence of Grizzly Bear Spirit in Qat’muk. This is a novel claim and invites this Court to extend s. 2(a) beyond the scope recognized in our law.
[71] We would decline this invitation. The state’s duty under s. 2(a) is not to protect the object of beliefs, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination. In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship …Section 2(a) protects the freedom to pursue practices, like the wearing of a kirpan in Multani or refusing to be photographed in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567. And s. 2(a) protects the right to freely hold the religious beliefs that motivate such practices. In this case, however, the appellants are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. That claim is beyond the scope of s. 2(a).
[72] The extension of s. 2(a) proposed by the Ktunaxa would put deeply held personal beliefs under judicial scrutiny. Adjudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs. In Amselem, this Court chose to protect any sincerely held belief rather than examining the specific merits of religious beliefs.
In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, precept, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.” (italics added)
Ktunaxa stands for the following legal principles:
1.- The word “religion” in the Charter includes Aboriginal “pagan”, pantheistic and other such “spiritual” beliefs and practices.
2.- The Canadian state has the duty to not knowingly force, cause or enable any person to involuntarily participate in the religious beliefs and practices of any other religion in any state or state-funded institution
3.- The Canadian state is obligated to be neutral in matters of religion.
4.- The Canadian state has the duty is to protect a person’s right to hold religious beliefs and manifest them in worship or otherwise, but it has no duty to protect the objects – including but not limited to the physical objects – of anyone’s religion’s beliefs.
5.- No court is to determine as a matter of fact the truth or falsity of a particular religious belief.
The Canadian judiciary consistently ignores these principles in court cases involving Aboriginal religious beliefs and practices.
In no area of Canadian jurisprudence have our judges allowed themselves to appear to be so biased, willing to jettison long-established laws, and “faddish” as in the area of Aboriginal law, where, instead of focussing on being objectively fact-based, and focussing only on the properly-adduced evidence in the cases before them, in their reasoning processes they have improperly widened their traditionally narrow and constrained scope of activities to become “social justice”-oriented, amateur historians and social issues partisans.
With respect to Aboriginal issues before the courts as they pertain to religion, this negative and harmful judicial trend started well before the Ktunaxa decision.
In the 1996 Badger treaty interpretation case, the Supreme Court, in describing the nature of treaties, declared as a fact that Crown treaties with Aboriginal peoples were religious in nature.
The Court wrote:
“First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred.” (italics added)
Something “sacred” is considered to be holy and deserving respect, especially because of a connection with a god.
By declaring it a legal fact that treaties are religious in nature- not just someone’s or some group’s belief that that is so[i]– the Supreme Court violated the Ktunaxa principles.
Badger has been continuously affirmed by subsequent courts, including the Supreme Court of Canada, up to the present day.
In the 2023 B.C. Court of Appeal case of Servatius v. Alberni School Board and British Columbia , the issue before the court was whether an Aboriginal smudging ceremony performed by an Aboriginal “Elder” in a Grade 6 classroom, that subjected all students to smelling and inhaling sage smoke, violated the state’s duty of religious neutrality. The facts and legal issues that emerged from the 2020 trial decision are well described here by the lawyer for Candace Servatius, John Carpay.
Two days prior to the smudging ceremony a letter clearly describing its purpose was drafted by one Sherry Cook, the “Nuu-chah-nulth education worker” employed by the Alberni board, and signed by the school principal. The letter said that the smudging was going to be a “classroom/student cleansing”. It further said that the students would:
“…experience cleansing of energy from previous students in our classroom, previous energy in our classroom and cleanse our own spirits to allow GREAT new experiences to occur for all of us…Classroom and furniture will also be cleansed to allow any previous energy from: falls, bad energy, bullying, accidents, sad circumstances etc. to be released and ensure the room is safe for all and only good things will happen.”
Clearly, within the meaning of section 2 of the Charter, the smudging ceremony was going to be a religious ceremony!
Mrs. Servatius didn’t receive this letter until after her daughter had already been subjected to this classroom smudging ceremony, carried out by one Margaret Eaton, “an Elder with knowledge of smudging.”
In court Mrs. Servatius’ evidence was that she and her daughter, as evangelical Christians, believed that the Bible is the sole authority for religious life, and that their beliefs required them to abstain from “religious, spiritual or supernatural ceremonies” of any kind that are not part of Christianity, including smudging. She testified that it was against her conscience and her family’s religious beliefs to be present during a smudging ceremony.
Paying only lip service to the principle that “teaching methods must comply with strictly secular principles”, both the trial court and the Court of Appeal dismissed Mrs. Servatius case, ruling that the smudging ceremony was an “admirable and admissible effort to teach, in a memorable way, about Indigenous beliefs”, and that the ceremony was merely a “demonstration of an Indigenous cultural practice.”
A cultural religious practice.
The reasoning of both courts was forced, feeble and evasive, and fully demonstrated judicial bias in favour of a double standard permitting Aboriginal religious ceremonies to take place in a state-funded institution, in direct contravention of the Ktunaxa principles.
Sherry Cook’s letter was baldly explained away as being a “misstatement”.
Margaret Eaton, the “Elder” who performed the smudging, failed to testify in court, and no adverse inference against the Alberni School Board was made by either court from this, as is usually the case when a key person with evidence central to the factual and legal issues in the case inexplicably fails to appear in court to be examined and cross-examined under oath.
The decisions of both courts were filled with purportedly-justifying but objectively irrelevant and unreliable references to the amateurish Truth and Reconciliation Report, the “calamity” of “forced attendance” at residential schools, “forced assimilation”, “colonialism” supposedly ending a pre-contact Aboriginal Eden, “reconciliation”, “cultural genocide”, “Aboriginal worldviews and perspectives”- and all other such unsubstantiated historical rationales and shibboleths which distort and manipulate history, and which infantilize Aboriginal peoples. (In this regard refer to the Indian Residential School Research Group website for cogent and compelling rebuttals to all these blood libels continuously levelled against our honourable Canadian ancestors by Canada’s courts, including the courts in Servatius.)
Revealing the trial judge’s complete bias and complete intellectual capture by and submission to these Christianity/residential school blood libels, he snidely mocked Mrs. Servatius’ argument that the smudging ceremony amounted to religious indoctrination, saying:
“In historical context, there is some irony in the petitioner’s stated position that the (smudging ceremony) amounted to “religious indoctrination”. However, I agree with the proposition that regardless of the role played by the churches in the residential school calamity and the pressing need for reconciliation, the petitioner is entitled to send her children to public schools that comply with the secular duty of neutrality.” (Italics added)
Truly ironically, and despite the courts in Servatius so casually demeaning the role of Christianity and residential schools in post-contact Aboriginal history – both of which were voluntarily embraced by past Aboriginal generations – it is partly because of those two things -Christianity and residential schools- that Aboriginal peoples are thriving in Canada today.
In the 2021 Ontario case, Ginoogaming First Nation v. Her Majesty the Queen, the Ontario Superior Court granted an injunction to an Aboriginal band which claimed in its Statement of Claim that it had an “Aboriginal Sacred Areas Right” and an “Aboriginal Sacred Practices Right” the protection of which justified the Court issuing an injunction preventing the mining exploration permit holder from exploring its claims.
The judge granted the injunction, ruling that “whether spiritual rights have been surrendered under Treaty 9 raises a serious issue for trial.”
In so ruling, the judge in effect recognized the validity of the legal concept of Aboriginal “spiritual rights”- religious rights- to treaty-surrendered land – the physical object of their alleged beliefs– thereby tending to determine as a matter of fact the truth of this alleged Ginoogaming religious belief.
By granting the injunction, the judge in effect protected the alleged objectof the alleged religious beliefs of the Ginoogaming band – it’s alleged, physical “sacred area”.
The biased judge never gave so much as a passing thought about her clear violation of the Ktunaxa principles.
In the 2023 B. C. case, Gitxaala v. British Columbia (Chief Gold Commissioner), the B.C. Supreme Court ruled that the constitutional duty to consult was owed to the Gitxaala band, which was triggered by the long-established, (since 1858), free-entry system of issuance of mineral claims because, amongst other reasons, it supposedly caused “adverse impacts upon areas of significant cultural and spiritual importance” to the Gitxaala.
One geographical area of cultural and spiritual significance which Gitxaala pointed to in evidence was an alleged physical home of supernatural beings which was described as “Naxnanox.” This, from the court judgment:
“As described by the affidavit of the petitioner Nees Hiwaas, Gitxaala believes that all living things in Gitxaala Territory have their own naxnox (pluralized “naxnanox”). Naxnanox are supernatural beings or nature spirits. Gitxaala’s ancestors learned the values, beliefs, and law that define Gitxaala culture through experiences with naxnanox. Naxnanoxhave spanaxnanox (dens or territories) within Gitxaala Territories. Gitxaala Traditional Territories are the physical home of these supernatural beings.
The evidence tendered by Gitxaala indicates that the location of the supernatural “dens” is a guarded secret within their culture. However, the disturbance of any of these dens, which would be occasioned by mineral exploration, would constitute the disturbance of a spiritual place that cannot be repaired.
I further note that the concept of “adverse impacts” must be viewed through the lens of the First Nation. In other words, the duty to consult is not triggered when the province believes there is an adverse impact. The situation must be viewed from an Indigenous perspective…viewed from the First Nation’s perspective, the activities of recorded holders could potentially damage areas that are culturally or spiritually significant to the petitioners. Hence, the perspective of the petitioners is an important consideration.”
Accepting at face value the clearly religious belief of the Gitxaala that the well-being of the supernatural “naxnanox” would be adversely impacted by mineral claims registered without prior Gitxaala consultation and accommodation, the Supreme Court, for this and other reasons, declared B.C.’s entire mining claim registration system to be an unconstitutional violation of section 35 of the Constitution.
By purporting to protect the supposedly physical (?) object of Gitxaala religious beliefs -the supernatural “dens” wherein the alleged “naxnanox” supposedly reside, (I can’t believe that in 2025 I’m writing this), and by treating the asserted existence of the “naxnanox” as virtually established fact, the B.C. Supreme Court again blithely ignored and violated the Ktunaxa principles, which proscribe it from doing both of these things.
As evidenced by the Ginoogaming decision, above, the Ontario courts are no better at maintaining state neutrality in relation to religious issues that come before them in contested Aboriginal cases.
In the Ontario Court of Appeal 2024 case, Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town), the main issue of which was whether as a result of a possible survey error when the reserve was surveyed a part of Sauble Beach fronting and forming part of the private property of certain private property owners belonged to them by virtue of their land patents or belonged to the Chippewas of Saugeen First Nation.
In upholding the trial judge’s decision that the disputed part of Sauble Beach belonged to the Chippewas band, the appeal court considered, approved and upheld the fact that the trial judge had considered that the private property owners had financial interests and sentimental attachments to their properties, and that the trial judge “contrasted those interests with Saugeen’s constitutionally protected rights and the sacred cultural connection between Saugeen and the lakeshore.” (italics added)
On this point the trial judge, Justice Vella (the same judge who, in Ginoogaming, had granted an injunction to the Aboriginal band partly to protect its “spiritual interests” in certain land), had written as a result of performing this contrasting exercise:
“Balanced against these important (private property owner) attachments is Saugeen’s attachment to its own land. This attachment was eloquently expressed by Chief Anoquot. The reason why the Disputed Beach is important is because of the cultural connection between his people and the land and water, which is sacred. Moving to a different location is not an option because of this sacred relationship to their land and water.” (italics added)
Neither the trial judge nor the Court of Appeal, the latter of which repeated the Badger statement that “treaties are sacred”, said that the Chippewas merely believed that they had a sacred, religious connection to the disputed beach. Both stated it as an objective fact.
Thus, in the Chippewas case, the trial judge and the Court of Appeal in upholding her judgment, both totally ignoring the Ktunaxa principles, determined as a matter of objective fact the “truth” of the Chippewas’ purported “sacred”/religious connection to the “Disputed Beach”.
Canada’s judiciary enables and promotes the dissemination of Aboriginal religious beliefs in the public sphere to the exclusion of the beliefs of all other religions.
They are clearly biased in favour of allowing the state and state institutions to be used as the means of that enabling and promotion of Aboriginal religion.
Canada’s judiciary is wrong to think that by doing so it is promoting “reconciliation.”
Rather, it is promoting a socially divisive, illiberal, legal double standard based on race.
By doing so, in addition to ignoring the Charter of Rights and Freedoms, it is widening the trust and credibility gap that already justifiably exists between it and the Canadian populace.
Peter Best
April 21, 2025
[i] Just as, in actual practice, Canadian courts are biased in favour allowing the state to promote Aboriginal religious beliefs, in actual practice Canadian courts and Canadian elites generally, only enforce “sacred” Crown treaty promises and obligations. Treaties are “two-way streets”, but the “sacred” treaty promises made by Aboriginals, like being loyal to the King and obeying his laws, for examples, are consistently ignored and never enforced.