Legal Words are Latent Thoughts: Understanding Discourse Around Aboriginal Religion in Delgamuukw v. British Columbia

Abstract

When Aboriginal issues involving Aboriginal religion come up in Canadian courts the religious aspects are avoided and pushed to the margins of the case and freedom of religion is not addressed. This article focuses on the Supreme Court case of Delgamuukw v. British Columbia, a land claims case where religion is again in the periphery, in order to determine how Aboriginal religions are being framed and conceptualized in court (by both the Court and by Aboriginal peoples). It will do so by examining the legal text surrounding the sacred oral traditions and histories of Aboriginal peoples, by investigating references the Court makes to Aboriginal religions, and by discussing the implications of the Aboriginal title discourse for Aboriginal religions. More generally, this article brings to attention some of the issues that Aboriginal peoples’ religious traditions face in terms of freedom of religion in Canada.