Resourceful impacts: Harm and valuation of the sacred

Abstract

The use of rationalized risk assessment to identify the costs and benefits of protecting Aboriginal sacred sites is ubiquitous in Canadian law. Like other contemporary critics of cost-benefit analysis, I voice concerns with its use to adjudicate moral claims and recognize that it can misidentify the depth of loss experienced by Aboriginal peoples when sacred sites are destroyed. Nonetheless, in this article, I question in what ways technocratic approaches to risk could be helpful in protecting sacred sites. The article draws on two recent environmental assessments, the Prosperity Gold-Copper Mine Project in British Columbia and the Screech Lake Uranium Exploration Project in the Northwest Territories, to argue that innovative approaches to characterizing loss illustrate the potential of rationalized methods to identify harm better than it has in the past. The panels’ recommendations to reject the projects, based on the risk that the communities would suffer mental and psychological harm, reflect a genuine effort to provide decision makers with the real cost of approving these two projects. While I do not suggest that cost-benefit analysis can represent the loss of absolute values, I argue that, if done with cultural context in mind, assessment may help to extract the type of information needed to find the depth of empathy from which legal solutions may be constructed.

How Should Courts Respond to Political Questions? Exploring the Dialogical Turn in the Supreme Court of Canada’s Federalism and Indigenous Case Law

“…Acting reasonably and honorably within the context of the unique Indigenous-Crown relationship could, for example, include a requirement that decisions following consultations account for the unique vulnerabilities experienced by affected Indigenous parties (Sossin 2003, 180; Potes 2006). In practice, this may resemble project cost-benefit analyses that are sensitive to the cultural context in which it is employed; for instance, environmental assessments can include assessments of mental and psychological harm to capture the loss of culturally and spiritually significant sites (Graben 2014). Furthermore, if the Court adopted the stance taken in Van der Peet , that the Indigenous and common law perspectives are equally important when assessing section 35 rights, the Court could evaluate the quality of the Crown’s accommodation measures based on whether Indigenous perspectives on their rights were given equal consideration in the Crown’s final decision.…”