A ground-breaking Supreme Court of Canada decision on Charter protection of religious beliefs that depend on sacred areas is likely to reverberate through future legal cases and will test Canada’s support of the UN Declaration on the Rights of Indigenous Peoples.
The Ktunaxa Nation appealed a 2012 decision by the B.C. government to approve a plan by Glacier Resorts Ltd. to build Jumbo Glacier Resort, a 6,250-bed ski resort, on Crown land in the Purcell Mountains, about 55 kilometres west of Invermere.
The land, known as Qat’muk to the Ktunaxa, Nation, is believed to be the home of the Grizzly Bear Spirit, the Ktunaxa spiritual source of guidance, strength and protection, and has been at the heart of a 26-year fight to stop the proposed development.
The Ktunaxa, who say they have lived in the area for more than 10,000 years, argued that permanent structures would drive the Grizzly Bear Spirit from Qat’muk, making it impossible for them to continue their spiritual practices
But the court agreed with lower court rulings and said that, although the Ktunaxa have a right to hold those beliefs, the Charter does not extend to protecting sacred sites and building the resort on land considered sacred does not breach religious rights.
“The Charter protects the freedom to worship, but does not protect the spiritual focal point of worship,” says the ruling.
Ruling Says Development May Proceed Without Indigenous Consent
The judgment, which is likely to be used as a legal precedent, also says the duty to consult and, if appropriate, accommodate aboriginal interests, does not give aboriginal groups a veto over developments.
When land claims are unproven, there is a right to a process, but not to a particular outcome, it says.
“Where adequate consultation has occurred, a development may proceed without the consent of an indigenous group.”
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Ktunaxa Nation lawyer Peter Grant said the ruling that freedom of religion does not include religious sites is troubling.
“As a Catholic, that would be like protecting the right to go to church, but it would not protect the right to the eucharist,” he said.
The decision by the nine judges was unanimous, but Justice Michael Moldaver and Justice Suzanne Cote took a different view of spiritual protection.
Moldaver wrote that the object of the spiritual practices — in this case Qu’atmuk — must be protected and, without that, indigenous religious freedoms involving land are at risk.
“My colleagues’ approach amounts to protecting empty gestures and hollow rituals, rather than guarding against state conduct that interferes with profoundly personal beliefs,” he wrote.
However, allowing the Ktunaxa to veto the development, because of the religious significance of the area, did not fit with the minister’s mandate, Moldaver wrote, explaining why the final decision was to unanimously dismiss the appeal.
Grant, who believes courts are nervous about linking aboriginal spirituality to the landbase, said there appears to be a fear that indigenous spiritual practices could take priority over state decisions.
The federal and provincial governments have adopted the UN Declaration on the Rights of Indigenous Peoples and, indirectly, the court has thrown the ball back to the political arena, Grant said.
UNDRIP says that “indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupies and used lands.”
Grant believes it is an issue the government must address.
“They have no choice but to put their money where their mouth is,” he said.
“Otherwise, where do aboriginal people in this country go to protect their rights?”
Ruling Calls Into Question Canada’s Commitment to UNDRIP
Margot Venton, lawyer for Ecojustice, an intervenor in the case, said it was hoped there would be a ruling that would reflect that aboriginal spiritual practices are often tied to naturally intact land.
So the outcome is very disappointing and does not seem to properly represent freedom of religion, Venton said.
“What the Ktunaxa believe is that if the grizzly bear spirit leaves, there is no point to the practice because the spirit is not there. So it doesn’t matter whether or not you can do the ritual and go through the motions,” she said.
“The court’s decision that destroying a sacred site doesn’t infringe on freedom of religion worries me quite a bit. I think it’s not in line with the view taken internationally or with the UN Declaration on the Rights of Indigenous Peoples,” she said.
Judgment Should ‘Alarm’ Canadians: Ktunaxa
Disappointment is rife among members of the Ktunaxa Nation and Kathryn Teneese, Ktunaxa Nation Council Chair, said the decision means the Supreme Court is telling every indigenous person in Canada that their culture, history and spirituality are not worthy of legal protection from the constant threat of destruction.
“This judgment should be alarming to Canadians, whether or not they consider themselves religious or spiritual. We brought forward our most private and sacred beliefs in the hopes that the court would earnestly, and in good faith, not just listen, but hear them,” she said.
Instead, there was a profound failure to recognize the values and beliefs of indigenous people, Teneese said, adding that the ruling is in direct contradiction to the ideals of reconciliation and UNDRIP.
“Once again, the worth and value of indigenous peoples is subjugated to the goals of a Canadian state that seems content to continue without them,” she said.
Although there will be no more steps within the legal system, other strategies will be studied, Teneese said.
Proponents Look to Build Smaller Resort
Tommaso Oberti, consultant to Glacier Resorts, said in an interview the proponents are looking at building a smaller resort, with 2,000 beds, which would not need an Environmental Assessment Certificate.
The previous certificate was cancelled by the provincial government in 2015 after it was determined the project had not been substantially started.
However, Teneese said, if plans for a smaller resort are filed, the Ktunaxa will ask the province to conduct an environmental assessment as issues such as water and wildlife corridors would still be affected.
A statement from Arnold Armstrong, chairman of the Glacier Resorts board said the project can now move forward.
“We seek to work in a cooperative spirit and believe that the common good and the beauty of the project will ultimately bring people together,” he said.
Main Image: Commander Glacier by Pat Morrow.