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Governments must not wait on courts to implement UNDRIP rights concerning Indigenous sacred sites: lessons from Canada and Ktunaxa Nation v. British Columbia

ABSTRACT Relying on analysis of Ktunaxa v. British Columbia (2017) and the law and jurisprudence that shaped it, this article assesses the implementation of UNDRIP rights concerning Indigenous sacred sites in Canada. It describes sacred sites and relevant aspects of the UNDRIP and assesses Canadian law and jurisprudence against these. It reaches three main conclusions. First, as interpreted by the courts, the Canadian constitution does not fulfil Canada’s UNDRIP obligations concerning sacred sites: whether a group enjoys these rights depends largely upon the legal status of the land on which the site is situated; whether a group can secure these rights depends largely upon how the law treats the group’s relationship to its site; and whether the state may limit these rights is determined by reasons that do not satisfy UNDRIP standards. Second, the Canadian Supreme Court’s decision to stick with its jurisprudence rather than use Ktunaxa to more closely align Canadian law with the UNDRIP suggests that governments must not rely upon the courts to implement their UNDRIP obligations for them. Thus, third, political actors who seek UNDRIP compliance must take the initiative themselves to address legal imperfections like those identified in this article through regulatory, legislative, and constitutional action.