Catalogue of Uncommon Legal Precedents

The Archaeology of Legal Perception: Precedents, Personhood and Possibility

by Lexi Rubin

The common law grows by means of precedents: prior decisions are supposed to provide guidance for how to decide the case at bar, and even exert “binding authority.” Thus, judges and lawyers look to case law and statutory law to answer the questions before them. Yet, what is often missing from legal proceedings is a willingness to cut the legal imagination loose from the currently prevailing consensus, and re-ground it in past precedents that are no longer on the radar. That is what this probe is about: precedents that have been lost track of, or forgotten. This probe is not an argument for “judicial-law making” (even though that is what the common law consists of), much less “judicial activism,” however: it is neither presentist nor forward-looking, it is backward-looking, an exercise in the “archaeology of legal perception”.{n1} 

The question is whether courts are sufficiently primed or willing to look beyond what has been doctrinalized or constitutionalized and find a different answer in the buried precedents of the past. Ktunaxa Nation v. British Columbia is a case where that willingness was missing. This probe argues that the decision was a failure of the legal imagination not just because the Ktunaxa Nation's claim did not succeed, but because the lawyers who argued it and the judges who heard it lacked the imagination to look beyond the text of section 2(a) of the Charter of Rights and Freedoms, 1982. {n2} The precedents to decide the case differently were present in the common law. They simply were not sought out.

Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)

The case of Ktunaxa Nation concerns an Indigenous nation’s challenge to the building of a ski resort on Qat’muk, a site of profound spiritual significance and sacred importance to the Ktunaxa people. According to Ktunaxa ontology, Qat’muk is the home of the Grizzly Bear Spirit. They hold that the Grizzly Bear provides spiritual guidance and is essential to their ceremonies, prayers, and the transmission of their beliefs to future generations. {n3} The Ktunaxa professed that constructing a ski resort would drive the Grizzly Bear Spirit from the land, permanently severing their spiritual connection to the site and destroying the foundation of their religious practice. 

The lawyers representing the Ktunaxa Nation elected to frame the claim as an issue of religious freedom under s. 2(a) of the Charter. The Supreme Court of Canada per McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ recognized that s. 2(a) protects the freedom to hold beliefs and practice religion, but held that the provision does not protect the so-called object of those beliefs. To quote from the majority opinion: “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” (para 71). 

As a result, the Ktunaxa Nation’s claim failed: the development went ahead and the Grizzly Bear Spirit was expropriated or severed. This didn’t have to be the case, had the lawyers but looked beyond the Charter and tapped into the vast resources of the common law – that is, the private law as opposed to the public law.{n4} 

The Failure:

How does the way in which the claim was framed by the lawyers for Ktunaxa Nation represent a failure of the legal imagination?{n5} Many lawyers and legal scholars would likely have approached the issue in a similar manner. After all, there is no shortage of precedents for  claims concerning violations of religious freedom under s. 2(a). The failure lay in the inability to look beyond what was already familiar. A claim of legal personhood could have provided a framework through which the Grizzly Bear Spirit was recognized not merely as an object of religious belief, but as a “juristic entity” capable of exercising legal rights and enjoying the protections they afforded. The precedents for extending legal personhood beyond human beings existed within the legal system, the lawyers simply needed to look beyond the contemporary consensus to see it. 

Earlier Openings of the Legal Imagination: Forgotten Precedents 

Consider the following two cases: Mullick v Mullick and Re Noah Estate

As discussed in Mario Michas’ probe entitled “Hindu Religious Artefacts and Cross-Cultural Jurisprudence: Breaking the Person/Property Barrier,” in the Mullick v Mullick case, which came before the Privy Council in 1925, the court was asked to determine whether a Hindu idol was merely family property controlled by its ostensible proprietors/custodians, or whether it possessed its own legal personality under Hindu law. The Court recognized the idol as a distinct legal entity with its own rights, holding that the shebaits (priests, guardians) did not own the idol but instead held duties and obligations toward it. {n6}

“It has to be pointed out that the idol is not otherwise represented in the proceedings, though the result might conceivably vitally affect its interests...Their lordships are accordingly of opinion that it would be in the interests of all concerned that the idol should appear by a disinterested next friend appointed by the Court” (41, 42). 

Re Noah Estate came before the newly-founded Territorial Court of the Northwest Territories in 1961. {n7} It was presided over by Jack Sissons. Noah, an Inuit man, had died intestate. The issue was whether Igah, the woman Noah had married according to Inuit custom, could be recognized as his legal survivor and inherit from his estate. The marriage had never been formally registered in accordance with the Marriage Ordinance of the Northwest Territories (R.O.N.W.T., 1956, c. 14). Hence, according to the lawyers for the Department of Northern Affairs and National Resources, Igah was nothing more than a “concubine,” and the entirety of the estate should accordingly revert to the state. Justice Sissons bristled at this insinuation (Inuit customary marriage as “concubinage”). And so he went on a scavenging expedition, unearthed the ancient common law doctrine of marriage by consent, and adapted (or “cross-culturalized) it: asking whether it was binding in the eyes of the community, whether it was moral, and whether it was of mutually consented to and exclusive.{n8} By recognizing the validity of the Inuit customary marriage, Sissons was holding that the common law of Canada had room to recognize Indigenous legal traditions.  

Together, these two cases highlight that the precedents necessary to approach Ktunaxa differently existed. Mullickestablished that legal personhood could extend beyond human beings, while Re Noah Estate demonstrated that Canadian law could (and should) recognize and give legal legibility to Indigenous customs. The failure in Ktunaxa was, therefore, not a lack of legal tools, but a failure to look for them. 

An Archaeology of the Case Law on Legal Personhood 

In Indigenous Natural Sites and Spiritual Governance: Legal Case for Juristic Personhood by John Studley, the author notes that in most recent cases where juristic personhood has been granted, such  the Whanganui River, Aotearoa/New Zealand, the Ganges River, India (Salim v. State of Uttarakhand, 2017), the Uttarakhand Himalaya, India (Miglani v. State of Uttarakhand, 2017), the Atrato River, Colombia (2016), and Mount Taranaki, New Zealand (2017),  the subjects are inhabited by numina (a Latin word meaning divine powers or spirits). {n9} Studley traces this legal reasoning back to earlier cases, such as Mullick v. Mullick (1925), as discussed above, where colonial judges in India conferred juristic personhood on Hindu idols and deities once they had been ritually “enspirited. He also cites Christopher Stone's influential 1972 article “Should Trees Have Standing?”, which argued that legal personality should extend to trees, rivers, and the environment, and Justice Douglas' dissent in Sierra Club v. Morton (1972), which held that environmental objects should have standing to sue. Studley argues that most sacred natural sites are animated or “enspirited” by a unique, geospecific spirit possessing its own particular personhood (Studley, figure 1.6).

“Assigning legal personhood to cultural heritage is not a completely new perspective. In ancient Greek society and throughout the medieval period, certain sacred spaces—such as temples and churches—were occasionally recognized as entities possessing legal standing or moral status”. {n10}

This is precisely how the Ktunaxa described Qat’muk. Their’s was not a general claim that the land was sacred or spiritually significant in the abstract, it was pleaded in the name of a distinct, geospecific spiritual being, proper to that place, whose evacuation due to the onset of construction would be a real loss. In other words, the site was enspirited, the basis on which courts have extended personhood to nonhuman subjects in the past. The Supreme Court did not need to invent a new framework, and should not have approached the case solely through the lens of s. 2(a) of the Charter; it only needed to recognise that the Grizzly Bear Spirit was not the object of a belief but the kind of enspirited subject the common law, through cases like Mullick, had already shown itself capable of recognizing. 

It is not as though the Ktunaxa First Nation did not press their case. They summoned their oral history, and this was noted (in obiter) in the minority opinion per Moldaver and Côté JJ {n11}:

“The Ktunaxa hold as sacred several sites within their traditional lands, and they revere multiple spirits in their religion. The Ktunaxa believe that a very important spirit in their religious tradition, Grizzly Bear Spirit, inhabits Qat’muk, a body of sacred land that lies at the heart of the proposed ski resort. The development of the ski resort would desecrate Qat’muk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the land. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. All songs, rituals, and ceremonies associated with Grizzly Bear Spirit would become meaningless” (para 117)

It is just that the court was unable to see things their way, much like in the Delgamuukw case when it came before Chief Justice McEachern of the BC Supreme Court. {n12} McEachern CJ belittled the evidentiary value of the abundant evidence of their oral tradition presented by the Hereditary Chiefs of the Wet’suwet’en and Gitskan in support of their claim to “ownership and jurisdiction” over a 58,000 square kilometer territory in the interior of British Columbia. To him, the kungax (spiritual songs), and other oral traditions were “myth” (not history), and suspiciously self-serving. In the Supreme Court of Canada, McEachern CJ’s decision was voided. Per Lamer CJ: “Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents” (para 87). It appears that the ears of the court became closed during the interval between Delgamuukw and Ktunxa First Nation: there was a retraction of listening. {n13}

Another reason for the mishearing has been pinpointed by Danielle McNabb and Minh Do in their content analysis of the interveners’ submissions in the Kunxta Nation case:

Despite Indigenous interveners’ efforts to explain the nature of Indigenous religions, particularly the spiritual relationship many Nations have to the land, this testimony is not reflected in the majority’s opinion, either explicitly or implicitly. Perhaps most telling is our finding that the words “land” and “lands” are only mentioned 22 times, and exclusively in contexts unrelated to Indigenous spiritual beliefs. Instead, “land” is exclusively discussed by the majority in relation to development, citing terms such as “Land Use Plans,” “Land transfers,” and “Land Reserves.” Rather than engaging with Indigenous interveners’ discussions of the sacredness of land, the majority narrowly frames its interpretation of s. 2(a) through freedom of religion case law. {n14}

The implication is that the court was not simply applying a neutral legal framework: it was applying a framework built to see land as property, not as relational or ensprited. {n15}

Conclusion

While modern international law offers a comprehensive framework for safeguarding cultural heritage, it largely conceptualizes heritage as an object of protection rather than a subject of rights (Frigerio, 4). This probe argues that judicial actors must begin to recognize the legal pathways that have long existed but remain hidden, beyod the pale of the prevailing consensus. As proven by Mullick, Re Noah Estate and the research of John Studley, the tools are already present within our legal systems. We just need to have the willingness and cultivate the imagination to use them. {n16} Extending legal personhood to heritage, spiritual beings, and other non-human entities would require law to embrace a more pluralistic and relational understanding of value, not by creating an entirely new legal framework, but by recognizing the possibilities that already exist, and engaging in “cross-cultural jurisprudence” in place of assuming that domestic law rules. (Frigerio, 6). To call the law of the state “domestic law” is actually a misnomer: it is not domestic, it is transplanted from the metropoles (England, France, etc.) from which the “fragment societies” (e.g Canada, the United States) are descended, to become the colonial-settler states of the contemporary world order.

Acknowledgments

I wish to thank Dr. David Howes for his close reading and extensive comments on an earlier draft of this probe. It was written during the course of my employment as a research assistant on the “Sensitive Material” project, funded by the Social Sciences and Humanities Research Council of Canada (grant no. 430-2024-01324).

Notes

{1} On the analogy of Michel Foucault’s “archeology of medical perception” in The Birth of the Clinic (Foucault, M., 2012. The Birth of the Clinic. Routledge.)

{2} The notion, “failure of the legal imagination,” builds on Clifford Geertz’ definition of law as “a distinctive way of imagining the real” in “Local knowledge: fact and law in comparative perspective” (Geertz, C., 2008. Local Knowledge: Further Essays in Interpretive Anthropology. Basic Books) and “The Uses of Diversity” in Clifford Geertz, Available Light: Anthropological Reflections on Philosophical Topics (Princeton, Ct: Princeton University Press, 2000). Geertz’s approach has been operationalized in Howes, D., 2005. Introduction: Culture in the Domains of Law. Canadian Journal of Law and Society/La Revue Canadienne Droit et Société, 20(1) 9 and Howes, D., 2023. Sensorial Investigations: A History of the Senses in Anthropology, Psychology, and Law. Penn State University Press.

{3} Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386 at para 125.

{4}  As Dr. Howes observed in a comment on an earlier draft of this probe:

The Supreme Court docket has come to be dominated by public law/constitutional law cases since the adoption of the Charter, and the proportion of private (common law or civil law) cases has shrunk significantly. Charter cases are sexy, private law cases are not. As a result, lawyers and judges are just not looking to the private law for solutions. But they ignore the rich legacy of the common law at their peril. This can be inferred from comparing Jack Sissons’ approach to law with what passes for legal reasoning in the present. Sissons was deciding cases long before the adoption of the Charter, with its “fundamental rights horizontality” (in Aurelia Ciacchi’s apt phrase), and even the Canadian Bill of Rights was still in its infancy. Unfettered by the rampant constitutionalism of latter day Canadian law, Sissons scavenged for and recuperated all manner of arcane legal sources, such as the common law doctrine of marriage by consent, and recognized Indigenous customs as a source of law in their own right, as Brian Bucknall has shown.  This empowered Sissons to engage in what I have called “cross-cultural jurisprudence,” or the study of law “without the state,” in a truly inspired and inspiring way. His decisions are “historic,” but for the wrong reasons: they are buried under the weight of the presentism of the latter day legal imagination – dead precedents.

See Ciacchi, A. “Fundamental Rights Horizontality in Europe.” Paper presented at the Fifth World Congress of the World Society of Mixed Jurisdiction Jurists, Valetta, Malta, May 2025; Bucknall, B. O. "John Howard Sissons and the Development of Law in Northern Canada." Osgoode Hall Law Journal 5.2 (1967): 159-171;  Howes, D, “Introduction: Culture in the Domains of Law,” Special Issue on Cross-Cultural Jurisprudence, (2005) Canadian Journal of Law and Society 20(1): 9-30.

{5} In a post on the Ktunaxa Nation entitled “Silencing the Qat’muk Grizzly Bear Spirit,”David Laidlaw independently hit on an argument analogous to the one presented here. Drawing on the Privy Council's 1925 decision in Mullick v. Mullick, which accorded legal personality to a Hindu idol, and on the Whanganui River's recent recognition as a juristic entity in New Zealand/Aotearoa, Laidlaw proposes that Grizzly Bear Spirit, or the sacred land of Qat'muk itself, could have been assigned juristic entity status, with a court-appointed next friend to represent its interests. He argues this path was authorized by the “highest available Commonwealth precedent” (a high authority, certainly, but one whose lessons have not been well remembered) and would have advanced reconciliation by grounding Indigenous spiritual connection to land within the framework of imposed Canadian sovereignty. See Laidlaw, D. “Silencing the Qat’muk Grizzly Bear Spirit” (6 November, 2017), online: ABlawg, http://ablawg.ca/wp- content/uploads/2017/11/Blog_DL_Ktunaxa.pdf. 

{6} Mullick v. Mullick and another, [1925] UKPC 33.

{7} Re Noah Estate, (1961) 32 D.L.R. (2d) 185 (N.W.T. Terr. Ct.).

{8} Campbell, Angela. “Intestacy.” McGill Law Journal 66, no. 1 (2020): 97–105.

{9} Studley, J., 2018. Indigenous Sacred Natural Sites and Spiritual Governance: The Legal Case for Juristic Personhood: figures 5-6. Routledge. Regarding the Whanganui case see: Charpleix, L., 2018. The Whanganui River as Te Awa Tupua: Place‐based Law in a Legally Pluralistic Society. The Geographical Journal, 184(1), pp.19-30.

{10} Frigerio, A., 2025. Legal Personhood for Cultural Heritage? Some Preliminary Reflections. International Journal of Cultural Property, 32(4), 347 at 350.

{11} It should be noted that Moldaver and Côté JJ concurred with the majority as to whether the “duty to consult” had been observed, and therefore concurred in the result. Their discussion of Ktunaxa ontology was consequently unnecessary to the disposition of the case and was, accordingly, obiter.

{12} Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Delgamuukw v. British Columbia, 1991 CanLII 2372 (BC SC).

{13} Howes, D., 2023. Sensorial Investigations: A History of the Senses in Anthropology, Psychology, and Law. Penn State Press. pp. 221-271, 231.

{14} McNabb, D. and Do, M., 2025. Interveners' Ideas As Influence: Revisiting Ktunaxa Nation. Dalhousie Law Journal,48, p.222.

{15} Kress, M. and Horn-Miller, K. (eds.) (2023) Land as Relation: Teaching and Learning through Place, People and Practices. Toronto: Canadian Scholars.

{16}  This neglect or obfuscation is an effect of the presentism of much legal education in the present. There are courses in “Foundations of Canadian Law,” for example, as at McGill University, but the history of law is a specialist topic, not part of the core curriculum. This results in law students never being the wiser about the resources of the private law as it has developed historically. Such precedents as do survive into the present are bare precedents, stripped of their historical context. On the closing of the modern legal mind see Howes, D., 1986. From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929. McGill Law Journal, 32, p.523.