Indigenous peoples practice diverse spiritual traditions in Ontario,[487] reflecting the diversity of Indigenous peoples in Ontario and Canada.[488] This section addresses the duty to accommodate Indigenous spiritual beliefs and practices in areas covered by the Code.[489]
“Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.” – United Nations Declaration on the Rights of Indigenous Peoples[490]
This policy uses “Indigenous”[491] as an inclusive term to encompass all Indigenous peoples and identities, including status, non-status, Indian, Aboriginal, Native, First Nation, Métis and Inuit.
The OHRC does not define "Indigenous Spirituality" in recognition of its diversity and Indigenous peoples’ right to define and determine this for themselves.[492] Other terms may be used or preferred by Indigenous peoples, including those that are more specific to a Nation, language, place and/or people.
The Inuktitut word “Upirusutuk” is used among Inuit people to mean “having faith.”
In this policy, “Indigenous Spirituality” refers to the spiritual beliefs and practices that Indigenous peoples identify as being “traditional” or “customary” among Indigenous peoples. This may sometimes include and be practiced in combination with other faith traditions, such as Christianity.[493]
“Métis spirituality can include both ceremony and Christianity. It is connected to both our Euro-Christian and Aboriginal First Nation roots and practices. As Justice Phelan said: ‘One can honour the feather and the fiddle.’” – OHRC focus group participant[494]
It may also include:
Example. The quilliq (Inuktitut: ᖁᓪᓕᖅ, IPA: [qulːiq]) is a type of low-intensity oil lamp made from soapstone and an arctic cotton and moss wick fueled by animal oil. It was traditionally used by the Inuit primarily as a survival tool for staying warm in the home, drying clothes and cooking. It is now sometimes used as a ritual teaching tool and as part of opening and closing ceremonies at gatherings, where it has become a sacred symbol of Inuit identity and traditional culture. Illustrating the close interconnection between culture, identity, spirituality and health, we heard one Elder remark while watchfully keeping the low-level flame alight: “I feel good when I use the qulliq.”[495]
While Indigenous spiritual beliefs and practices can vary significantly among different First Nation, Métis and Inuit groups and individuals, and across different regions, some common elements were evident during our engagements. For example, many people spoke of Indigenous Spirituality as a “way of life” and “way of knowing” (or worldview) that was centered on a relationship with the Creator, the land and “all our relations.” This usually included all other beings and forms of life, including what are commonly perceived as inanimate objects, which were generally seen to be imbued with a spirit or soul. Most also viewed Indigenous Spirituality as being inseparable from their traditional Indigenous culture and identity.
During OHRC engagements[496] with Indigenous peoples, many people spoke about the ongoing legacies of colonialism in Ontario. This included the active suppression and denigration of Indigenous culture, language, spirituality and ways of life by government and church authorities, and concerted efforts to destroy, subjugate and assimilate Indigenous peoples.[497]
Residential school survivors talked about being forced to go to church and to not speak their language or practice “traditional ways,” or risk being beaten or even being denied food.
“Some of our Elders who went to residential schools will not speak about traditional ways or spirituality. It is taboo for them [after being associated with the ‘dark side’ for so many years]. If they do practice, it is often done ‘under the table’ or is not identified as having any religious or spiritual significance.” – OHRC focus group participant[498]
Today, many people are reclaiming and reviving Indigenous cultural and spiritual traditions in the process of healing and recovering from historical traumas and their ongoing legacies in the present.[499]
“[A]s a child, we had to hide who we were...I grew up not saying who I was. My father would say he is Mexican. Only over the last 20 years have I felt safe to be able to say who I am.” – OHRC focus group participant[500]
It is important for individuals and organizations in Ontario to understand and not repeat this history of denigration and denial of Indigenous peoples’ spirituality, cultures and identities, and to recognize, respect and accommodate people's Indigenous spiritual practices as a human right in the present with central importance for people's dignity and well-being.
“Traditional ceremonies and spiritual practices…are precious gifts given to Indian people by the Creator. These sacred ways have enabled us as Indian people to survive – miraculously – the onslaught of five centuries of continuous effort by non-Indians and their government to exterminate us by extinguishing all traces of our traditional ways of life. Today, these precious sacred traditions continue to afford [us] the strength and vitality we need in the struggle we face every day; they also offer us our best hope for a stable and vibrant future. These sacred traditions are an enduring and indispensable ’life raft‘ without which we would be quickly overwhelmed by the adversities that still threaten our survival. Because our sacred traditions are so precious to us, we cannot allow them to be desecrated and abused.” – Christopher Ronwaien:te Jock[501]
Research and OHRC engagements[502] with Indigenous peoples showed that many Indigenous peoples experience systemic barriers when practicing Indigenous Spirituality. This was often due to organizations' narrow interpretations of what is protected under the Code ground of creed and failure to recognize Indigenous spiritual beliefs and practices as engaging the Code protections. Sometimes this was due to the imposition of an overly rigid distinction between “culture” or “tradition” on the one hand and “religion” or “creed” on the other, which made little sense in Indigenous contexts due to the culturally-rooted and holistic[503] nature of Indigenous Spirituality.[504]
“We don’t have a religion. We have a way of life. It is embedded in our daily life.” – OHRC focus group participant
“You cannot put it into a box and say, this is spirituality.” – OHRC focus group participant[505]
“Indigenous spirituality is a more complex phenomenon than the term spirituality alone, as generally understood, implies. Spirituality is closely bound up with culture and ways of living in Indigenous communities and requires a more holistic or comprehensive... approach.”[506]
Many of the barriers Indigenous peoples encountered were also due to individuals' and organizations' unfamiliarity with Indigenous Spirituality, and how it may differ in form and expression from the way many people understand or practice religion or spirituality.
“Anishinabek spiritual expression differs substantially from what many people regard as religious.” – John Burrows[507]
“Like many North Americans, my socialization has imbued in me a sense of religion that is limited to churches, congregations and Sunday attendance. Native spirituality cannot be adequately understood in these terms. Perhaps the most challenging aspect of native spirituality to grasp is its all-pervasiveness.” – Lori Beaman[508]
Many people told the OHRC that they preferred not to identify their spiritual beliefs and practices as a religion or a creed. For some, such terms had a negative connotation due to the residential school experience.
Under the Code, a person or group does not have to view their spiritual practice or belief as a religion or creed for it to be protected as a creed.[509]
The Ontario Human Rights Code, Canadian Human Rights Act, Canadian Constitution, Charter of Rights and Freedoms and United Nations Declaration of the Rights of Indigenous Peoples include legal protections for the fundamental right of Indigenous peoples to freely practice their religious and spiritual traditions, and to be treated equally and with dignity.
Employers, unions, housing and service providers that fall under provincial jurisdiction[510] have a legal duty under the Ontario Code to uphold Indigenous peoples’ right to be free from discrimination based on creed. As part of this obligation, where there is a negative impact on Indigenous peoples’ spiritual beliefs and practices, there is a duty to accommodate up to the point of undue hardship.[511]
The case law has clearly recognized Indigenous Spirituality to be within the meaning of creed under the Code.[512] Organizations should generally accept in good faith that a person practices a creed, unless there is significant reason to believe otherwise.[513] When considering if an accommodation request is creed-based, organizations should look at the criteria set out in section 4.1 of this policy.
Individuals and organizations must not impose their own subjective view of what is a creed or creed-related practice (for example, falsely assuming that a creed must have written dogma or articles of faith).[514]
Where there are legitimate reasons to question if an accommodation need or request is creed-based,[515] it is essential that organizations meaningfully engage the Indigenous persons seeking accommodation to learn their perspective on the spiritual or creed-related significance of their sincerely held belief or practice requiring accommodation. Failing to do so may contravene the Code’s duty to accommodate, including its procedural component.[516]
Charter and Constitution Act
Section 25 of the Charter[517] and section 35[518] of the Constitution Act, 1982 recognize and affirm the constitutional rights of Indigenous peoples in Canada. This includes but is not limited to enforcing treaties and Aboriginal land titles, and the right to preserve traditional cultural practices and activities such as fishing, logging, hunting and other customary and sacred traditions.
In R. v. Van der Peet, the Supreme Court of Canada discussed the underlying legal basis for aboriginal rights:
…the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.[519]
On this basis, the Court set out the “integral-to-a-distinctive culture” test still used for determining whether an Aboriginal right under section 35(1) of the Constitution has been engaged:
[I]n order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right... Where an aboriginal community can demonstrate that a particular practice, custom or tradition is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practices, customs and traditions of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an aboriginal right for the purposes of s. 35(1).[520]
The analysis for determining creed rights under the Code is distinct from the test for determining whether an Aboriginal or treaty right has been engaged under the Constitution. For example, to engage creeds rights under the Code, there is no need to show the continuity of an Indigenous spiritual belief or practice with a pre-contact Indigenous custom or tradition.[521]
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
Canadian and Ontario laws and human rights provisions affecting Indigenous peoples should be interpreted in light of, and uphold the provisions of, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Endorsed by the Government of Canada in 2010,[522] UNDRIP provides an internationally recognized framework for measuring the human rights of Indigenous peoples,[523] setting the “minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.”[524] Several provisions directly relate to rights associated with practicing Indigenous Spirituality, including but not limited to[525]:
Article 12(1):
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.
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.
Article 34:
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.
The sections below outline some of the issues and corresponding rights and responsibilities that may arise under the Ontario Code’s duty to accommodate creed practices and beliefs in Indigenous contexts.
Organizations under provincial jurisdiction have a duty to accommodate Indigenous peoples’ spiritual beliefs and practices – including ceremonies and sacred customs – under the Code, where rules, practices, standards, or requirements negatively impact these in employment, services, housing, contracts, unions or professional or vocational associations.
Example: An Indigenous inmate in a correctional facility requested access to Indigenous spiritual services offered through a Native Liaison person, which included healing, talking, sharing or sacred circles, smudge ceremonies, sweat lodges, one-on-one sessions, and making or using a medicine pouch, dream catchers or drums. Despite repeated requests, he did not receive a visit from the Native Liaison nor did he receive Indigenous spiritual literature. However, he did receive a visit from a chaplain and Christian literature within a reasonable period of time. The British Columbia Human Rights Tribunal found that while Christian services were reasonably available, the inmate was effectively denied access to Indigenous spiritual services which amounted to discrimination based on his religion and ancestry. [526]
Some ceremonies may be best facilitated and led by an Elder or knowledge keeper.
The smudging ceremony is a common purification rite performed in Ontario that involves burning one or more sacred medicines, such as sweetgrass, sage, cedar and tobacco. There are many variations on how a smudge is done. The OHRC heard that people often faced barriers when seeking to smudge. This was often due to a lack of clear protocols and inclusive design measures to facilitate the practice in a timely and appropriate way.
As a student I had to submit a request a week in advance for smudging. But if I have a need to smudge, it is not something that I can hold onto for a week. – OHRC focus group participant
Smudging may sometimes be required at unpredictable times – for example, at a time of death in a hospital, or a moment of crisis during the school or work day. Where smudging accommodation needs are known to potentially exist, organizations should take proactive steps to facilitate the practice in a dignified and timely way.
Example: Many Indigenous ceremonies involve burning traditional medicines like sweetgrass, sage, tobacco and cedar. The Ontario Ministry of Aboriginal Affairs built a smudging room at its offices in Toronto. The new space will allow for Indigenous smudging and other traditional ceremonies to occur at the Ministry. The two-room design features a larger room with a connected smaller space where traditional medicines will be stored, along with access to clean water for ceremonial purposes. When not in use for ceremonial purposes, the combined space can host larger circles and gatherings. The design for the new space includes Indigenous etchings on a floor-to-ceiling curved glass wall and will feature artwork from Indigenous artists. The Ministry is working with Elders to develop guidelines and educational resources to support it in creating a positive and welcoming space. Through the room, Elders and knowledge keepers will be able to share traditional teachings and provide culturally specific guidance. Health and safety measures have been incorporated into the design to meet or exceed those required under the Ontario Building Code.
Deputy Minister Deborah Richardson said, “The smudging room will be a welcome space for everyone who works and visits the Ministry. It will be our special place to connect with and learn about traditional Aboriginal ceremonies, and provide a dedicated space where visiting knowledge keepers and Elders can lead teachings and offer culturally specific counselling.”
Failure to accommodate a person’s Indigenous spiritual belief or practice in a timely and appropriate way may be discriminatory under the Code. [527]
Example: A school in a community with large numbers of Indigenous students tells a student to go outside to smudge, including in inclement weather. Students who smudge are also ridiculed by other students and falsely accused by students and staff alike of consuming drugs (“smoking up”), or smelling like it.
Telling students to go outside to smudge, including in inclement weather conditions, may breach the school's duty to accommodate by not doing so in a way that respects students’ dignity.[528] If it does not appropriately intervene to address and remedy the negative student and staff comments, the school may also be in breach of its duty to maintain an environment free from discrimination and harassment.
Failing to inclusively accommodate people’s Indigenous spiritual practices on an equal basis – including status or non-status First Nation, Métis and Inuit – may also be discrimination under the Code.
Example: An organization only recognizes First Nations ceremonies as meriting accommodation, and does not accommodate Métis spiritual practices.
Health and safety concerns sometimes pose a barrier to accommodating Indigenous spiritual practices. Only serious and substantiated health and safety risks may be grounds for denying or limiting these requests.
Example: A worker at a supportive housing facility for pregnant women and new mothers prevents an Indigenous woman from carrying her baby on her back in an Amauti, a traditional coat with a built in baby carrier. The woman sees this dress and child-carrying custom as being essential to her cultural identity, tradition and way of life. The worker prevents her from using the Amauti for alleged health and safety reasons that are not investigated or substantiated in any way.
Even where a bona fide health and safety risk has been identified, organizations must still search for ways to remove or mitigate such risks to facilitate an accommodation, short of undue hardship.[529]
Indigenous Spirituality may also be expressed through other non-ceremonial but customary practices. For example, organizations may have a duty to accommodate Indigenous peoples’ food and dress/appearance standards and requirements, where these are connected to an Indigenous cultural-spiritual belief.
Example: A boarding home for children requires all children living there to keep short hair. An Indigenous boy who keeps his hair long in a ponytail for cultural and spiritual reasons is made to cut his hair. This violates Indigenous customary practices and sacred laws, and may be discrimination under the Code.
Example: An Indigenous court clerk of Inuit ancestry wears a seal skin pendant on top of her court gown uniform. The court accommodates her wearing the pin or emblem in recognition of its sacred value for her.
Organizations also have an obligation to be aware of differences between individuals and groups, and to build in conceptions of equality to standards, rules or requirements.[530] This means designing workplaces, services and housing inclusively for the needs of people who practice Indigenous Spirituality, including when developing or changing policies, programs, procedures, standards, requirements or facilities to ensure such needs are met in a timely and appropriate way.[531]
The Sioux Lookout Meno Ya Win[532] Health Centre (SLMHC) provides a broad range of basic and specialized primary health care services to the Sioux Lookout area and northern First Nations.[533] The 145,000 square foot, 60-bed regional hospital integrates traditional and modern medicines and practices and takes a holistic culturally integrated approach to care that recognizes the relationship of the physical, emotional, mental and spiritual aspects of the person. Area First Nations played a central role in founding, planning and building the hospital[534] and continue to have a central governing role today.[535] The facility was designed by Stantec Architecture and Douglas Cardinal, a Blackfoot/Métis architect, in consultation with traditional healer and elder Josiah Fidler (among other area First Nation residents). Its architecture and interior design thoroughly reflect Indigenous teachings.[536] The Centre also features a healing room for Indigenous spiritual practices with an adjacent room to supply and prepare traditional medicines including the four healing plants (tobacco, sage, sweet grass and cedar).
The Chief Sakatcheway Healing Room is equipped with an air exchange system to handle smoke from various ceremonies such as smudging, and representations of the four elements, including: an earthen floored pit filled with earth from the communities of the catchment area; a symbolic pipestone fireplace; a water wall; and windows and skylights to represent air/light. The Centre’s Traditional Healing, Medicines, Foods and Supports Program (THMFS) offers patients and clients support and choice in healing approaches. An eight-member Elders Council supports the SLMHC Board in planning, implementing and evaluating programs; two Elders in Residence provide spiritual-cultural support services to patients; interpreter services are available around the clock in three languages and 19 dialects; a roster of healers offers traditional healing practices (Andaaw’iwewin) to inpatients, along with access to traditional medicines (Maskiki) and foods.
As part of inclusive design measures to meet Indigenous Spirituality accommodation needs, employers, service providers (e.g. health care professionals, police services, legal services) and housing providers should look at whether their staff have the necessary cultural competency skills to recognize and meet the creed-related needs of Indigenous peoples.[537] This can be especially important for organizations that provide services to the public.
Example: A child protection agency that serves Indigenous and other peoples requires its staff to take full-day Indigenous cultural competency training. Policies are in place to make sure Indigenous children are placed in culturally appropriate environments wherever possible, and support programs and services facilitate the practice of Indigenous Spirituality.
A complete organizational strategy is recommended to prevent and address human rights issues based on creed.[538] This strategy should also consider employment practices to make sure these do not discriminate by preventing the recruitment and/or retention of Indigenous persons with the necessary skills to effectively and equally serve Indigenous members of the public.
Example: A hospital that provides religious and spiritual support services to in-care patients fails to provide such services to persons who practice Indigenous Spirituality. The organization seeks to hire a “chaplain” to fill this gap in Indigenous spiritual counselling services, but fails to successfully recruit anyone. The job advertisement requires that applicants have a Masters of Divinity. The organization does not have a rationale for this requirement, and so it would not be a bona fide requirement. In fact, this requirement could adversely affect the ability of qualified Indigenous Elders and knowledge keepers to gain employment in this role, and may also prevent the hospital from providing equal services.
Some Indigenous spiritual practices require people to take part in specific activities, sometimes at particular times of the day, week or year. When these observances do not coincide with existing schedules, holidays or break times, or conflict with existing leave of absence provisions, organizations may have a duty to accommodate to the point of undue hardship.
For example, this may include providing time off to take part in:
Indigenous Spirituality is often closely connected to land-based activities, such as hunting, trapping, cultivating and harvesting practices.
Some Métis people in Ontario mark the harvest with a festival that provides a special opportunity for the community to connect, take part in traditional Métis cultural activities and pass on traditional skills and oral traditions integral to Métis culture, identity, religion and spirituality.
For some First Nations, ceremonies and traditions marking big life moments may be integrated into seasonal hunting activities. For example, the seasonal goose hunt[539] may sometimes begin with a “walking out” ceremony welcoming children into Cree society. A “walk out” ceremony may also occur in the winter when the child is old enough to walk out for the first time on snowshoes.[540]
Persons who are knowledge keepers or Elders in the community may also require time off to lead or support ceremonies for other community members.
People may sometimes require time off for grieving. There is a Code duty to accommodate such practices, when based on Indigenous spiritual beliefs or customs.[541] Depending on the spiritual custom or tradition followed, a person’s bereavement-related accommodation needs may sometimes conflict with an organization’s policies or collective agreement provisions. For example, the grieving period may extend beyond the time allocated for grieving in an organization's policy or collective agreement. People may also need time off to observe or lead grieving practices for persons who are not immediate family members, where this is called for by cultural-spiritual custom or tradition.
The OHRC heard that Inuit people may have namesakes. The person someone is named after may be considered “spiritual family” and may be of even greater significance for a person than their physical family members (by blood or marriage).[542] Attending the funeral and taking part in grieving practices for a namesake may be just as important as for an immediate family member.
Organizational policy and collective agreement terms should not be used as a basis to deny people accommodation to observe a bereavement practice connected to an Indigenous spiritual belief or custom. [543]
See section 10.1 for more information on accommodating creed-based observances requiring time off.
“Our relationship to the land defines who we are; we are the caretakers of Mother Earth. What is sacred then is more than a single burial location. The location of medicines, ceremonies, stories, burial sites, traditional harvesting and hunting grounds, villages and trading areas are all locations that are ‘sacred. The locations of these sites are living; they are not ‘artefacts’ relegated to antiquity. As well, instruments created to celebrate stories and ceremonies, protect medicines and honour our ancestors are sacred...[T]he definition of what is ‘sacred’ is determined by the First Nation community itself and [is] reflective of the community's values of what is sacred.” – Chiefs of Ontario[544]
Organizations may have a duty to accommodate Indigenous peoples’ spiritual practices, including where organizational policies, rules or practices adversely affect, prevent or limit access to or use of sacred sites or objects connected to the practice of Indigenous Spirituality in a Code social area.
Since Indigenous peoples have lived in Ontario for over 11,000 years,[545] and reserve lands make up less than 1% of Ontario land,[546] many Indigenous sacred sites are located outside reserve boundaries.[547]
Access to, use and preservation of ancestral burial grounds, sacred ceremonial sites and other sacred sites are integral to Indigenous Spirituality. The courts have recognized the territorial aspect to the exercise of religious rights and customs of Indigenous peoples.[548]
Ancestral burial grounds are among the more well-known types of sites that Indigenous peoples consider sacred. [549]
“In Anishnaabeg[550] culture, there is an ongoing relationship between the Dead and the Living; between Ancestors and Descendants. It is the obligation of the Living to ensure that their relatives are buried in the proper manner and in the proper place and to protect them from disturbance or desecration. Failure to perform this duty harms not only the Dead but also the Living. The Dead need to be sheltered and fed, to be visited and feasted. These traditions continue to exhibit powerful continuity.” – Darlene Johnson[551]
“The Anishnaabeg belief is that the souls of their departed ancestors are attached to their bones. As such, Anishnaabeg treat the bones of their ancestors with great reverence, and abhor the disturbance of graves. This has been their way since time immemorial, and will be their way ever-more.” – Estate of Dudley George and George Family Group[552]
“It is important to understand how First Nation peoples view burial grounds. To us, our ancestors are alive and they come and sit with us when we drum and sing. We did not bury them in coffins, so they became inseparable from the soil. They are literally and spiritually, part of the earth that is so a part of us. That is one reason why we have such a strong feeling for the land of our traditional territories – our ancestors are everywhere. It is a sacrilege to disturb even the soil of a burial ground. It is an outrage to disturb, in any way, actual remains.” – The Chippewas of Nawash Unceded First Nation[553]
Government and regulatory bodies involved in development and planning activities (including policy or law-making) that may have a negative impact on Indigenous peoples' ability to practice Indigenous Spirituality should consider, prevent and mitigate such impacts. Indigenous peoples should be consulted and involved in decision-making processes to further prevent and mitigate negative impacts and facilitate inclusive design.
In 1996, the Royal Commission on Aboriginal Peoples (RCAP) recommended that governments return sacred lands to Aboriginal ownership. RCAP also recommended an inventory of historical and sacred sites, legislation to ensure that Aboriginal peoples can prevent or arrest damage to these sites, and a review of legislation affecting the conservation and display of cultural artifacts to ensure that Aboriginal peoples are involved.[554]
The (2007) Ipperwash Inquiry Report in Ontario further recommended:
The provincial government should work with First Nations and Aboriginal organizations to develop policies that acknowledge the uniqueness of Aboriginal burial and heritage sites, ensure that First Nations are aware of decisions affecting Aboriginal burial and heritage sites, and promote First Nations participation in decision-making. These rules and policies should eventually be incorporated into provincial legislation, regulations, and other government policies as appropriate
… Clearer rules and expectations regarding how to address Aboriginal burial and heritage sites will benefit all Ontarians, not First Nations only.
… This would promote respect and understanding of these issues throughout the provincial government. It would also promote consistency and conformity in their application.[555]
The (2015) Final Report of the Truth and Reconciliation Commission of Canada:
[C]alls upon the federal government to work with provincial, territorial, and municipal governments, churches, Aboriginal communities, former residential school students, and current landowners to develop and implement strategies and procedures for the ongoing identification, documentation, maintenance, commemoration, and protection of residential school cemeteries or other sites at which residential school children were buried. This is to include the provision of appropriate memorial ceremonies and commemorative markers to honour the deceased children.[556]
The desecration or destruction of sacred sites or objects, and/or failure to engage or consider the impact on affected Indigenous communities, may violate several provincial,[557] national and international laws.
The OHRC has made recommendations to better address the human rights and Aboriginal rights implications of provincial land use planning.[558] Ontario’s (2014) Provincial Policy Statement (PPS) under the Planning Act[559] says that planning authorities shall consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources. The PPS defines cultural heritage to include, among other things, buildings, structures, monuments and geographical areas that may have been modified by human activity. The PPS also says that it shall be implemented in a way that is consistent with and affirms existing Aboriginal and treaty rights in the Constitution Act as well as the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. The PPS encourages coordination with Aboriginal communities[560] when dealing with planning matters, including managing natural and cultural heritage and archaeological resources.
The Crown (including both the federal and provincial government) has a fiduciary duty to consult and accommodate Indigenous peoples when it considers actions or decisions that may affect potential or established Aboriginal or Treaty claim or rights under the Constitution.[561]
Freedom of religion under section 2(a) of the Charter may also extend rights protections relating to access to, preservation of and use of sacred sites and objects. These religious rights do not require that the Indigenous spiritual belief or practice existed since the time of pre-European contact.[562]
UNDRIP contains important provisions that should guide and inform enforcing human rights protections relating to Indigenous peoples' right to access, use and preserve sacred sites and objects.[563]
United Nations Declaration on the Rights of Indigenous Peoples, Article 12:
The Inter-American Court of Human Rights (IACHR) – which enforces the American Convention on Human Rights which Canada has not yet ratified – has made several important decisions giving concrete effect to such provisions.
In Mayagna (Sumo) Awas Tingni Community v. Nicaragua,[564] the IACHR described the importance of the land to Indigenous peoples and why such rights must be protected in what has been described as a “landmark decision” [565]:
Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but [have] a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.[566]
As part of the duty to accommodate, organizations may also be obliged to facilitate and not prevent access to sacred objects and items required to observe an Indigenous spiritual practice in a Code social area.
“At school, students that want to smudge are told to step outside – a fact that defines them as “other.” Once my son was wearing a medicine pouch and was asked by his teacher what was in it. When he said that it contained tobacco, he was told to remove it as tobacco is not allowed in school.” – OHRC focus group participant[567]
Example: Recognizing the close relationship between traditional Anishnaabe food consumption and health, culture, spirituality and identity, the Sioux Lookout Meno Ya Win Health Centre (SLMHC) offers all patients traditional foods (miichim) once a week in accordance with nutritional guidelines. The hospital, which serves many northwestern Ontario Indigenous peoples, also offers a selection of premade frozen miichim meals to patients who are interested in staying with their traditional diets on a daily basis. SLMHC negotiated with relevant authorities to get exemptions from legislation and regulations that would otherwise have prevented the hospital from receiving, storing and serving uninspected food and game (including moose, caribou, beaver, small game, whitefish, geese, ducks, local blueberries and wild rice, etc.) donated by local hunters, gatherers and outfitters.[568] The exemption enables the hospital to create a healing, comfortable and familiar environment for patients by serving traditional foods. It also enables the hospital to accommodate patients’ Indigenous cultural and spiritual practices, including those which require access to and use of miichim for ceremonial practices (such as for sacred “offering”[569] or feasting purposes).
Appropriate forms of accommodation should not create undue delays or pose unnecessary barriers to access such items, nor risk the integrity of such objects, in violation of Indigenous Spiritual norms, customs, laws and standards.
Example: Prison authorities subject Elders who provide spiritual support to Indigenous inmates to lengthy search and screening processes upon entry, inappropriately handling sacred ceremonial objects and medicines in the process. Their handling of such objects effectively renders them unusable for the intended purposes, due to Indigenous customary laws governing this.
Example: A court room has a ventilated smudge room that also contains sacred items such as the Eagle feather. When persons involved in court proceedings request to hold a feather during the proceeding, they are told the smudge room is locked and are effectively denied from doing so.
In exceptional cases, there may be a bona fide requirement to search, handle or limit access to items (as set out in section 9.5.2 of this policy).
Organizations should take proactive measures to prevent and mitigate negative impacts on people’s Indigenous spiritual practices, including by developing policies and procedures to ensure that accommodations are appropriately provided and sacred items are not inappropriately handled or denied access to.
Example: The Toronto Zoo developed a protocol, guideline and education for employees on how to gather, keep and distribute Eagle feathers. Many Indigenous people consider Eagle feathers to be sacred, and they are often part of an Elder’s bundle. It is offensive for an Eagle feather to be handled by someone other than the persons prescribed by customary law.
[487] According to the 2011 National Household Survey, 62% (or 185,655) of Aboriginal respondents in Ontario identified as being Christian (Catholic was the largest single denomination –35% of Aboriginal respondents in Ontario). The next largest groupings of Aboriginal persons by religion in Ontario self-identified as having “No religious affiliation” (32% or 96,800), followed by “Traditional (Aboriginal) Spirituality” (5% or 15,285) (Statistics Canada. 2013. Ontario (Code 35) (table). National Household Survey (NHS) Aboriginal Population Profile. 2011 National Household Survey. Statistics Canada Catalogue no. 99-011-X2011007. Ottawa. Released November 13, 2013. Retrieved September 9, 2014 from www12.statcan.gc.ca/nhs-enm/2011/dp-pd/aprof/index.cfm?Lang=E).
While the religion question on the 2011 National Household Survey lists “Traditional (Aboriginal) Spirituality” as an example, Statistics Canada does not define this term. Nationally, just over 64,900 people reported in this survey that they were affiliated with traditional Aboriginal Spirituality, representing 4.5% of the national Aboriginal population and 0.2% of the population as a whole. Most of the people who affiliated with traditional Aboriginal Spirituality lived in Ontario (24.5%) and the Western provinces of Alberta (23.3%), Saskatchewan (18.9%) and British Columbia (15.9%) (Statistics Canada. 2013. “Immigration and Ethnocultural Diversity in Canada,” Catalogue no. 99-010-X2011001, ISBN: 978-1-100-22197-7; www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-010-x/99-010-x2011001-eng.cfm).
[488] According to the 2011 National Household Survey, the largest First Nations population in Canada was in Ontario (201,100 or 23.6% of all First Nations people) (www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-011-x/99-011-x2011001-eng.cfm#a5; retrieved March 10, 2015). Ontario has the second largest population of persons identified as Métis among provinces (86,015), representing 19.0% of all Métis in Canada (www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-011-x/99-011-x2011001-eng.cfm#a5; retrieved March 10, 2015). Inuit people make up about 1% of Aboriginal People in Ontario (2,035), with the majority – 82%– living in urban areas (www.aboriginalaffairs.gov.on.ca/english/services/datasheets/Inuit.pdf; retrieved March 10, 2015).
In addition to Inuit and Métis Peoples, there are 126 First Nation communities in Ontario recognized by the Federal Department of Aboriginal Affairs and Northern Development (AAND) as a “band,” and over 207 reserves and settlements (AAND, www.aadnc-aandc.gc.ca/eng/1100100020284/1100100020288#ft2a [retrieved September 9, 2014]). First Nation peoples living in Ontario include the Anishinaabek, Mushkegowuk, Onkwehonwe, and Lenape Peoples (Chiefs of Ontario website at www.chiefs-of-ontario.org/faq; retrieved March 10, 2015). These Peoples make up 14 Nations: the Mushkegowuk (Cree), Mohawk, Tuscarora, Seneca, Cayuga, Oneida, Onondaga (the Haudenosaunee – Onkwehonwe Peoples), Delaware, Mississauga, Chippewa, Pottawotami, Algonquin, Odawa, and Anishinabe (the Anishinaabek Peoples) (ibid.).
[489] Indigenous Spirituality includes many diverse practices, but only some of these are discussed in this policy, in the context of accommodation issues that may arise under the Code.
[490] United Nations Declaration on the Rights of Indigenous Peoples, Article 34.
[491] See supra note 15 and accompanying side bar in section 3.1 for more discussion of this term.
[492] Many of the people we consulted cautioned against defining or limiting terms relating to Indigenous peoples, given the government's history of imposing definitions from without, including through policy development. As one focus group participant said: “It is strange to sit in a circle on policy given our history, and the history of policies telling us what to do.”
[493] For example, some people may integrate Christianity or other religious or philosophical orientations into an Indigenous worldview and perspective. Others may identify with Indigenous Spirituality as a cultural identity or perspective, without necessarily believing in a Creator or spiritual realm.
[494] OHRC focus group participant, citing statement by plaintiff Harry Daniels Jr. as quoted in Daniels v. Canada, 2013 FC 6 (CanLII) at para. 568.
[495] Source: OHRC focus group participant.
[496] The OHRC held six focus groups over 2014-15 in Waterloo, Toronto, Ottawa and Thunder Bay with a total of 23 First Nation, 10 Métis and 14 Inuit participants.
[497] For example, legal scholar John Burrows (2008, p.168) observes: “Aboriginal peoples have a long and tragic history of severe persecution in the name of European religions”. Burrows, J. (2008). Living Law on a Living Earth: Aboriginal Religion, Law, and the Constitution. In R. Moon (Ed.), Law and Religious Pluralism in Canada (pp.161-191). Toronto: UBC Press.
[498] OHRC focus group participant – slightly modified from verbatim to retain anonymity.
[499] The key role of Indigenous Spirituality, culture and tradition in enhancing health and well-being, in the context of such histories of displacement and oppression, are well recognized in the social scientific literature. See Fleming, J. and Ledogar, R.J. (2008). Resilience and Indigenous Spirituality: A Literature Review. Pimatisiwin: A Journal of Aboriginal and Indigenous Community Health, 6(2). See also Waldram, J.B. (1997). The Way of the Pipe: Aboriginal Spirituality and Symbolic Healing in Canadian Prisons (First edition). Toronto: University of Toronto Press, Higher Education Division.
[500] OHRC focus group participant.
[501] Jock, Christopher Ronwaien:te. (2000). Native American Spirituality for Sale: Sacred Knowledge in the Consumer Age. In L. Irwin (Ed.), Native American Spirituality – A Critical Reader. Lincoln: University of Nebraska Press. Cited in Dr. Karen Martin-Hill's paper “Traditional Medicine in Contemporary Contexts – Protecting and Respecting Indigenous Knowledge and Medicine" (Ottawa: National Aboriginal Health Organization, 2003), as cited by Justice Gethin B. Edward in Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603 at para.78; additional reasons for judgment Hamilton Health Sciences Corp. v. D.H., 2015 ONCJ 229 (CanLII). Dr. Hill, who testified during the hearing in D.H., is a Six Nations medical doctor schooled in “western medicine” but who also operates a medical practice on Six Nations with Alba Jamieson, who practices traditional medicine.
[502] In addition to conducting six focus groups in 2014-15 (one in Waterloo, one in Toronto, three in Ottawa and one in Thunder Bay) with a total of 23 First Nation, 10 Métis and 14 Inuit participants, Indigenous people also took part in the OHRC’s 2012 Policy Dialogue on creed and 2013 online survey on creed human rights, which had 33 Indigenous respondents.
[503] Illustrating the holistic nature of Indigenous Spirituality, the Aboriginal Education Directorate (of Manitoba) explains: “Many First Nations share the concept of ‘mino-pimatisiwin,’ which means ‘good life’ in both Cree and Ojibwe. Implicit in this is the understanding that all of life is a ceremony; that the sacred and the secular are parts of the whole; that people are whole beings (body, mind, spirit, emotion); and that ‘mino- pimatisiwin’ is achieved by taking care of all aspects of one’s self.” Manitoba Education and Advanced Learning. (2014). Smudging Protocol and Guidelines For School Divisions. Aboriginal Education Directorate. Retrieved July 24, 2015 from www.edu.gov.mb.ca/aed/publications/pdf/smudging_guidelines.pdf.
[504] For instance, we heard that for many people, Indigenous Spirituality is as much about language and culture, ways of knowing and a kinship to the land, as it is about traditional ceremonial practices such as smudging or the sacred pipe. Yet organizations tend only to view the latter as being protected under the Code ground of creed. For a review of legal approaches to Indigenous Spirituality, see Burrows, supra note 497; Ross, M.L. (2005). First Nations Sacred Sites in Canada's Courts. University of British Columbia Press; Beaman, L. (2006). Aboriginal spirituality and the construction of freedom of religion. In Beaman, L. (Ed.). Religion and Canadian Society: Traditions, Transitions, and Innovations (pp. 229-241). Toronto: Canadian Scholars Press Inc. These scholars show how religious freedom and equality laws have often been interpreted to protect only a narrow range of what is considered sacred and spiritual from an Indigenous perspective. They further highlight how the very categories of “creed” and ”religion” – produced primarily out of a Christian historical experience and tradition – in effect position western European conceptions of religion as “the norm against which Aboriginal spirituality is measured” or “accommodated” (Beaman, 2006, ibid., p. 237; see also Burrows, ibid., and Beaman, L. (2012). The missing link: tolerance, acceptance, accommodation and…equality. Canadian Diversity, 9(3), 16-19. Retrieved from www.ohrc.on.ca/en/creed-freedom-religion-and-human-rights-special-issue-....
[505] OHRC focus group participant. This viewpoint was heard repeatedly during OHRC engagements with Indigenous peoples. Another participant stated: “Within our school...we’re trying to be proactive by creating [a religious accommodation resource]. When that came up I knew there had to be a part for an Aboriginal perspective. But we’re not a religion, or a faith. So how do we fit in there?”
[506] Fleming and Ledogar, 2008, supra note 499, p. 47.
[507] John Burrows, University of Victoria Faculty of Law professor and member of the Chippewas of Nawash First Nation, 2008, supra note 497.
[508] 2002, p. 136-137. Beaman, L. (2002). Aboriginal Spirituality and the Legal Construction of Freedom of Religion. Journal of Church and State, 44 (1).
[509] For example, see Huang v. 1233065 Ontario, supra note 79.
[510] Most businesses and services in Ontario fall under provincial law (for a list of private-sector employers under federal jurisdiction see www.hrsdc.gc.ca/eng/labour/equality/employment_equity/private_ crown/list/index.shtml). Jurisdiction can be complex when it comes to Indigenous organizations, and is determined on a case-by-case basis. Generally, the question to ask is not so much the location of the service or employment (e.g. on or off reserve) but rather the nature or kind of employment/service provided, i.e. whether it is the kind of service or employment otherwise generally considered to fall under provincial jurisdiction (See NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, [2010] 2 SCR 696, 2010 SCC 45 (CanLII)). However, if the housing, employment or service is provided by a First Nations government or band or its agencies, or if the claim is related to federal funding, it may fall under federal jurisdiction. Organizations under federal jurisdiction may still have a duty to accommodate the religious and spiritual practices of Indigenous peoples under the Canadian Human Rights Act and the Canadian Constitution. For more on appropriate jurisdiction and the rights of Indigenous peoples under the Canadian Human Rights Act, see the Canadian Human Rights Commission's (2010) “Your Guide to Understanding the Canadian Human Rights Act,” Retrieved June 22, 2015 at www.doyouknowyourrights.ca/sites/nai-ina/files/pdf/guidechra_ojibwe.pdf.
[511] See section 9.5 for legal test for the duty to accommodate and 10.9 for more on undue hardship. There may also be a duty to accommodate a person’s belief or practice on other intersecting grounds (e.g. ancestry, ethnic origin, etc.).
[512] See for instance Kelly BCHRT supra note 79. See also Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568 at para. 275 (CanLII) [Ktunaxa Nation] which found Indigenous beliefs to be a religion under s. 2(a) of the Charter. On appeal, the British Columbia Court of Appeal agreed with this determination; 2015 BCCA 352 (CanLII) at para. 57.
[513] See section 9.6 for more on legitimate reasons for not accepting an accommodation request in good faith.
[514]In Forer (supra note 79), the Court of Appeal for Ontario noted the variety of religions and religious practices in Canada and stressed that what may be regarded as a religious belief or practice by one religion may be regarded as secular by another. Religion should not be determined from the perspective of the “majority” or “mainstream” in society. At the same time, the Supreme Court of Canada has stated that there are objective elements to the analysis of whether a practice is creed-based; Bennett, supra note 71 at para 7, citing Supreme Court decision in Amselem (supra note 5) at para. 39. For more about determining if a belief is in fact religious or creed-based, see section 9.5. See also section 9.6 for more on appropriate forms of inquiry.
[515] For more on when it is appropriate to inquire further about an accommodation need or request, and the appropriate scope and nature of this inquiry, see section 9.6.
[516] For more on the procedural and substantive components of the duty to accommodate, see section 9.2.
[517] Section 25 of the Charter states:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
[518] Section 35 of the Constitution Act, 1982 states:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Definition of “aboriginal peoples of Canada”
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
Marginal note:Land claims agreements
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
Marginal note: Aboriginal and treaty rights are guaranteed equally to both sexes
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Section 35 applies to Aboriginal or treaty rights that existed as of 1982 when the Constitution Act, 1982 came into effect and is subject to the test set out in R. v. Van der Peet. [1996] 2 S.C.R. 507, 1996 CanLII 216 (SCC).
[519] Ibid. at para. 30.
[520] Ibid. at paras. 46 and 63.
[521] The Code right to be free from discrimination based on creed extends to Indigenous practices, customs and traditions that are not protected by Section 25 or 35 of the Constitution Act. The duty to accommodate under the Code may be triggered where it can be shown that there is a negative (adverse) impact of a rule, practice, standard or requirement on an Indigenous person's sincerely held creed belief, whether or not this is continuous with or integral to a pre-contact Indigenous tradition.
[522] The United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on September 13, 2007 by an affirmative vote of 143 states. While Canada was originally one of four countries (along with the US, Australia and New Zealand) to vote against its adoption in 2007, on March 3, 2010, Canada declared that it “will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws” (Canada, Speech from the Throne, 3 March 2010, Retrieved June 24, 2010 at www.sft-ddt.gc.ca/eng/media.asp?id=1388>).
[523] UN declarations provide internationally recognized “standards” for measuring countries’ compliance with international human rights law (including norms, covenants and conventions). According to UN Special Rapporteur S. James Anaya – who announced in August 2008 that he will measure state conduct vis-à-vis Indigenous peoples by the yardstick of UNDRIP – UNDRIP represents:
an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law […] The principles and rights affirmed in the Declaration constitute or add to the normative frameworks for the activities of United Nations human rights institutions, mechanisms and specialized agencies as they relate to indigenous peoples.
(Human Rights Council, 2008. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya, UN Doc. A/HRC/9/9 of 11 August 2008, paras. 85 and 88. fn 30, p5-6: 30).
“While it is not in itself, technically, and under the positive law of the United Nations Charter, legally binding,...[a] declaration may be or become binding to the extent its various provisions, key parts or principles embedded in it, are backed up by conforming state practice and opinio juris” (International Law Association, 2010, supra note 17, pp.1,6).
UNDRIP, moreover, reflects legal commitments that are already enshrined in existing international treaty commitments and may be considered international “customary law” and have legal effect as such (ibid.; see ibid. for more on the legal status of UNDRIP in international law). This is reflected in part in the first preamble paragraph of the Declaration which states that in adopting UNDRIP, the General Assembly was “[g]uided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter” (emphasis added). According to the International Law Association's (2010) Conference Report (ibid., p.5), “this text clearly implies that respect of the UNDRIP represents an essential prerequisite in order for States to comply with some of the obligations provided for by the UN Charter.”
[524] UNDRIP, ibid. Article 43.
[525] Also see for example Articles 8, 10, 11, 12(2), 13, 18.
[526] Kelly BCHRT supra note 79.
[527] Meiorin, SCC, 1999, supra note 241 at para. 68.
[528] See section 9.4 for more on appropriate accommodation.
[529] For more on handling health and safety risks and accommodating up to the point of undue hardship, see section 9.9.
[530] Meiorin, SCC, supra note 241.
[531] See section 9.1 for more on inclusive design and section 12 on preventing and responding to discrimination.
[532] Meno Ya Win derives from the Oji-Cree word “miinoyawin,” which means health, wellness, wellbeing and the wholeness of the individual. The name reflects the health centre’s approach to care which is “achieved when all aspects of a person – physical, emotional, mental and spiritual – are whole and in balance.” (SLMHC brochure, Points of Interest – Stories and Traditions, p. 3).
[533] The health centre serves residents of Sioux Lookout and the surrounding area, the Nishnawbe-Aski northern communities, the Treaty #3 community of Lac Seul First Nation, as well as Hudson, Pickle Lake, Savant Lake. Eighty-five percent of SLMHC’s patients live in communities with no road access and must fly to Sioux Lookout to receive care. The catchment area serves approximately 30,000 people annually and covers the largest health care area in Ontario, serving some 28 northern Anishinaabe communities and four southern communities.
[534] The Sioux Lookout Four Party Hospital Services Agreement establishing the hospital was drawn up by members of the Sioux Lookout Hospital Negotiating Committee after four years of research and negotiations. Parties to the agreement included representatives from: the 28 First Nations Chiefs of the Sioux Lookout Zone; the Town of Sioux Lookout; and the Governments of Canada and Ontario.
[535] SLMHC is run by a volunteer Board of Directors composed of members representing First Nations communities and the communities of Sioux Lookout, Hudson, Pickle Lake, Savant Lake and their surrounding areas. There is proportional representation on the Board, with First Nations appointing 10 members, and southern communities appointing five members, as well as two doctors and a First Nations traditional healer. The Board is accountable to the communities served and is charged with providing regular information to those communities in culturally appropriate ways.
[536] Indigenous design elements are pervasive and include: a circular perimeter around the property to represent the Medicine Wheel and Anishnaabe philosophy of life; the orienting of wards and units in accordance with the cardinal directions of the Medicine Wheel and Circle of Life teachings (e.g. maternity ward on the east of the property and palliative care unit on the west of the property, in accordance with Anishinaabe beliefs about the seven stages of life as represented by the cardinal directions of the medicine wheel, beginning in the east and moving across the wheel to the west); a main hallway shaped in the form of an upturned canoe lit from above by a skylight; two courtyards designed to resemble a winding river bed; and four large Grandfather Rocks in the four cardinal directions near the main entrance of the building, with a fire pit in the centre for special and sacred ceremonies.
[537] For more on cultural competency, including its definition, see section 12.1.
[538] See section 12.
[539] Some Cree view goose food as “medicine” that has an important healing function.
[540] The OHRC heard about such activities during its focus groups. For more information on the significance of the goose hunt and Cree walk-out ceremony, see the AANISCHAAUKAMIKW Cree Cultural Institute website at www.creeculture.ca March 12, 2015).
[541] There may also be a duty to accommodate people on the grounds of family status and ancestry.
[542] We heard that names may establish spiritual relations and connections between people and a person may take on the namesake's characteristics.
[543] See section 5.1. for more about the Code’s primacy and sections 9.8 and 9.11.4 for more on the relationship between the Code and collective agreement provisions in unionized environments.
[544] Chiefs of Ontario Part 2 submission para.76, as cited on p.135 of the Ipperwash Inquiry Report. (2007). Report of the Ipperwash Inquiry, The Honorable Sidney B. Linden, Commissioner. Volume 2, Chapter 6, Aboriginal Burial and Heritage Sites. Toronto: Publications Ontario (web: www.ipperwashinquiry.ca). The Government of Ontario established the Ipperwash Inquiry under the Public Inquiries Act to inquire and report on events surrounding the death of Dudley George, who was shot in 1995 during a protest by First Nations representatives at Ipperwash Provincial Park and later died. The Inquiry was also mandated to make recommendations that would avoid violence in similar circumstances in the future. The hearings began in Forest, Ontario in July 2004 and ended in August 2006, under the direction of an appointed Commissioner, the Honourable Sidney B. Linden. The report, made public on May 31, 2007, is available at www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/ (Last retrieved June 22, 2015.
[545] Ibid. “The European presence is relatively recent, dating back about 400 years. Thus, the ‘post-contact’ period represents less than 4% of the human history of this province” (ibid.).
[546] “Today, the provincial government owns approximately 87% of the land in Ontario. Approximately 12% is privately owned. First Nations reserve land and federally owned lands such as national parks make up the remaining 1%. Not surprisingly, most Aboriginal burial and heritage sites are located on lands outside reserve boundaries” (ibid., referencing Darlene Johnston's “Respecting and Protecting the Sacred” [Ipperwash Inquiry research paper]).
[547] According to the Ipperwash Inquiry Report findings:
It is possible that 8,000 heritage sites were destroyed in the Regional Municipalities of Halton, Durham, Peel, and York between 1951 and 1991, most of them before 1971. It has been reported that approximately 25% of these sites represented significant archaeological resources, which merited some degree of archaeological investigation because they could have contributed meaningfully to our understanding of the past, or warranted outright protection because they were culturally significant places for the First Nation descendants of the people who created them. There has been a “marked reduction” in the rate of destruction of archaeological sites throughout much of the province...Yet the potential for loss in the future remains great because of “continued growth and development” particularly in Southern Ontario, where there is the most development
(ibid., pp. 136-7 citing figures from Archaeological Services Inc., “Legislation,” www.archaeologicalservices.on.ca/legislation.htm> [retrieved January 24, 2007]).
The report further states: “It appears that pressure related to this issue may be building. More confrontations are foreseeable if we do not act quickly and thoughtfully” (ibid., p. 129). See also Ross, supra note 504 and Burrows, supra note 497 for more on the nature of threats to Indigenous sacred sites and the role of Canadian law in relation to this.
[548] For example, see R. v. Sioui, [1990] 1 S.C.R. 1025. Four Huron men from the Lorette Indian Reserve in Quebec who entered Jacques-Cartier Park (a provincial park near the reserve) to practise certain ancestral customs and religious rites were convicted of cutting down trees, camping, and making fires in areas not designated for such purposes. The Quebec Court of Appeal overturned the conviction. The Attorney General of Quebec appealed. The Supreme Court of Canada, in a unanimous decision, dismissed the appeal. The Court found that the Hurons at Lorette had entered into a treaty with the British in 1760 that guaranteed their right to carry on their customs and religious rites at places within the “entire territory frequented by the Hurons at the time, so long as the carrying on of the customs and rites is not incompatible with the particular use made by the Crown of this territory.” [at p. 1070] The Court held that the Attorney General of Quebec had failed to establish that the exercise of Huron rites and customs was incompatible with the Crown's occupation of the land in the form of a park. See also Kelly Lake Cree Nation v. Canada (Ministry of Energy and Mines), [1998] B.C.J. No. 2471, [1999] 3 C.N.L.R. 126 at para. 23 (B.C.S.C.) (QL) [Kelly Lake Cree] in which the Court accepted that the Twin Sisters Peaks area in British Columbia had significant spiritual importance to the Kelly Lake Cree Nation and the Saulteau First Nation. On the connection between the land and the exercise of religious rights, the Court stated (at paras. 189-190): “the area of the Twin Sisters is a territorial aspect of the exercise of religious rights and customs even though there is a dearth of evidence of actual physical exercise of the religious customs. The religious rights and customs lie in the prophesy and the intellectual stewardship with which First Nations people view the area of the Twin Sisters. I accept that there is a territorial aspect to the KLCN members' religious practices that involves the Twin Sisters mountains even though there is no actual use in current or recent history of this area for such purposes.”
[549] These are primarily well-known due to the highly publicized and dramatic conflicts that have surrounded Indigenous efforts to protect ancestral burial grounds from desecration and destruction, such as at Oka and Ipperwash.
[550] “’Anishnaabeg’ is the term for people who speak Anishinaabemowin, so it would include Odawa, Potamwatomi, Ojibway, Mississauga, and some other tribes in the US” (Darlene Johnston, “Respecting and Protecting the Sacred,” Ipperwash Inquiry research paper, as cited in Ipperwash Inquiry Report, ibid., at p.148.
[551] Ibid. at. p. 130. For another detailed account of the sacred nature of ancestral burial sites to the Anishnaabeg, see the affidavit of Professor Darlene Johnston, Assistant Professor at the University of Toronto's Faculty of Law, as cited at para. 45 of Hiawatha First Nation v. Ontario (Minister of the Environment), 2007 CanLII 3485 (ON SCDC). This case involved a land dispute in the Pickering area.
[552] Ipperwash Inquiry Submission by the Estate of Dudley George and Members of Dudley George's Family, p. 46, as cited in the Ipperwash Inquiry Report, supra note 546 p. 133. The submission went on to state: “This explains why the Chief and council made a point of asking that the burial ground in Ipperwash Park be fenced off and preserved when it was discovered in 1937. It is also half the reason why the Stony Pointers occupied the Park in September 1995 – to reclaim the burial grounds of their ancestors that had been desecrated.”
[553] “Under Siege: How the People of the Chippewas of Nawash Unceded First Nation Asserted their Rights and Claims and Dealt with the Backlash” (inquiry project), p.21, as cited in p. 131 of Ipperwash Inquiry Report (ibid.).
[554] Ipperwash Inquiry Report, supra note 544 p. 148, referencing the Canada Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 2: Restructuring the Relationship (Ottawa: Supply and Services Canada, 1996), ch. 4, “Lands and Resources,” recommendations 2.4.58, 3.6.1, and 3.6. Note, however, that the Chiefs of Ontario rejected the “creation of an ‘inventory’ of sacred sites” as recommended by RCAP, stating in their submission to the Ipperwash Inquiry (at para.77): “Any attempt to do so would in our view, not only serve to draw attention to areas that ought not be exposed and brought to the attention of the larger public and thereby put these areas at real risk of exploitation, but may have the illusory effect of placing limits on the number of areas to be included in such an inventory” (p.135).
[555] Recommendation #22, ibid., pp. 146, 138-139, and 130. See. pp. 146-147 for further recommendations. The report further states: “In my view, the best way to avoid Aboriginal occupations regarding Aboriginal burial and heritage sites is to engage Aborginal peoples in the decision-making process. This kind of participation is consistent with the honour of the Crown and with the general themes of this report.” (p. 129).
[556] Truth and Reconciliation Commission of Canada (2015). Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation, p.312 Retrieved June 24, 2015 at www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_...
[557] See the Ipperwash Inquiry Report (supra note 544) for a review of the complex provincial legal regime governing Indigenous heritage (including sacred) sites and burial grounds, and the strengths and limitations of existing legislation and regulations; for example: the Cemeteries Act; Funeral, Burial and Cremation Services Act, 2002; Public Lands Act; Environmental Assessment Act; Ontario Heritage Act; Planning Act; Ontario Planning and Development Act, 1994; and since 2011 Standards and Guidelines for Consultant Archaeologists, etc.
[558] See OHRC submission regarding Ministry of Municipal Affairs and Housing proposed amendments to the Provincial Policy Statement on land use planning, November 23, 2012, online: www.ohrc.on.ca/en/mmah-provincial-policy-statement-review-land-use-plann....
[559] Available online at www.mah.gov.on.ca/AssetFactory.aspx?did=10463 (retrieved June 24, 2015).
[560] See Provincial Policy Statement 2014: Key Changes by Policy Area, online: www.mah.gov.on.ca/AssetFactory.aspx?did=10546
[561] For example, see Supreme Court decisions in Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Sparrow, [1990] 1 S.C.R. 1075; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) 2004 SCC 74, [2004] 3 S.C.R. 550; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69, [2005] 3 S.C.R. 388. See also the more recent SCC decisions of Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 and Beckman v. Little Salmon/Carmacks First Nation 2010 SCC 53, [2010] 3 S.C.R. 103 where the Supreme Court further explained that the duty to consult is a constitutional duty that involves the honour of the Crown and must be met.
[562] However, in Kelly Lake Cree, supra note 548 and Ktunaxa Nation, supra note 512, while the courts acknowledged s. 2(a) could apply, they found, on the facts before them, that the projects at issue (a gas well and ski resort) would not violate Indigenous religious rights under the Charter. The courts stated that s. 2(a) does not “protect a concept of stewardship of a place of worship under the protection of religious freedom” (Kelly Lake Cree at para. 195) or restrain and restrict the behaviour of others who do not share a group’s religious beliefs in order to preserve subjective religious meaning associated with a place (Ktunaxa Nation, BCCA at paras. 73-74).
For an overview of how Canadian courts have dealt with Indigenous rights claims relating to sacred sites, see Ross (supra note 504) and Burrows (supra note 497). For an overview of how the religious freedom claims of Indigenous peoples relating to sacred sites have fared in Australia, Canada, New Zealand and the United States, see Collins, Richard B. (2003). Sacred Sites and Religious Freedom on Government Land. 5 U. Pa. J. Const. L. 241.
[563] There are several UNDRIP articles that should be considered, such as:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
...
Article 11
1. 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.
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
Article 12
1. 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.
2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with Indigenous peoples concerned.
Article 18
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures,as well as to maintain and develop their own indigenous decision-making institutions.
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 (emphasis added).
[564] Mayagna (Sumo) Awas Tingni Community v. Nicaragua [31 Aug 2001], Inter-Am. Ct. H.R. (Ser.C) No 79, online: The Organization of American States www.oas.org> at para 149; cited in Ross, supra note 504, p. 1.
[565] Ross ibid., p. 1. For more on the significance of this decision, see also the International Law Association’s (2010) Interim Conference Report, supra note 17.
[566] IACHR in Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 564 at para. 149; cited in Ross ibid. According to the International Law Association (supra note 17, p.47), the IACHR has since “proclaimed a number of other significant principles concerning land rights and cultural rights of indigenous peoples, particularly: the fact of indigenous peoples being precluded to performing their rituals according to their own traditions (namely the exercise of their customary practices aimed at properly honouring the deceased) and of being separated from their traditional lands amounts to ‘emotional, psychological, spiritual and economic hardship-suffering to such a degree as to result in the state’s violation of Art 5(1)’ [American Convention on Human Rights] (which prescribes the right of every person ‘to have his physical, mental, and moral integrity respected’)[Endnote 311: See Case of the Moiwana Community v. Suriname, Series C No. 124, Judgment of 15 June 2005 para. 98 ff][…].” The IACHR has also ruled in support of the principle of “establish[ing] memorials to keep the memory of the wrong suffered by indigenous peoples” (International Law Association, supra note 17, p. 48, paraphrasing IACHR, ibid. at para. 218) – a principle affirmed by the Truth and Reconciliation Commission of Canada, including in its 2015 Final Report (Retrieved June 24, 2015 from www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_05_31_web_o.pdf).
[567] OHRC focus group participant.
[568] The hospital also took measures to comply with such regulations where possible, short of undue hardship. This included creating a separate kitchen and freezer to store wild game captured by local First Nations hunters, to comply with regulations restricting the use and storage of such foods in hospital settings.
[569] For example, one ceremony we heard about involved burning a small amount of traditional food in a ceremonial birch bark spirit bowl, where it may be served as an offering or put beside a tree, as an offering to the tree.