The Supreme Court of Canada has ruled unanimously that a private ski resort proposed for an area sacred to an Indigenous community can go ahead.
All nine judges said government and a developer adequately consulted with the Ktunaxa Nation of British Columbia, and seven said that the group had tried to push freedom of religion, as protected by Section 2(a) of the Charter of Rights, beyond its limits, by protecting a spirit said to reside in a particular location.
"The state's duty under s. 2(a) is not to protect the object of beliefs, such as Grizzly Bear Spirit," seven of the judges said, in a ruling written by Chief Justice Beverley McLachlin and Justice Malcom Rowe. "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."
Two other judges, Justice Michael Moldaver and Justice Suzanne Côté, said the government had placed a reasonable limit on the freedom of religion.
The ruling has major implications for Indigenous rights to protect their spiritual practices under the Charter of Rights and Freedoms, and also for freedom of religion beyond any one community or faith group. While the Supreme Court has expanded Indigenous rights and freedom of religion over the past three decades, it has also said such rights are not absolute.
The case involves a 6,250-bed resort ski resort to be built on Crown land in the Purcell Mountains area of southeastern British Columbia. The Ktunaxa Nation calls this area Qat'muk and says it is spiritually important for its people as home of the Grizzly Bear Spirit. The B.C. government gave permission in 2012 for the development to go ahead. A private company, Glacier Resorts Ltd., proposed the resort in 1991, and has conducted consultations with the Ktunaxa people.
The Ktunaxa say they have lived on the lands adjacent to the Kootenay and Columbia rivers and the Arrow Lakes of B.C. for more than 10,000 years, and that Qat'muk is essential to their way of life.
"Qat'muk provides for our Ktunaxa cultural security in the present and continuity of that spiritual and cultural security into the future. It enables Ktunaxa citizens collectively to renew and continue, and in certain cases individually to tap into deep and anchored roots in the world as Ktunaxa. If it is developed into a ski resort, it would make our existence as Ktunaxa much more fragile," a member of Ktunaxa told a lower court in an affidavit.
The Ktunaxa Nation lost in the lower courts, and appealed to the Supreme Court. The Crown said there should be no religious veto over development.
The case represented "the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion," University of Ottawa law professors Natasha Bakht and Lynda Collins told The Globe and Mail last year, as the Supreme Court prepared to hear the case. "Sacred sites are as necessary to Aboriginal religions as human-made places of worship such as churches, temples and mosques are to other religious traditions."
B.C. argued that the rights asserted by the Ktunaxa would interfere with the rights of others, and create the possibility that the right to freedom of religion would be vastly expanded.
It said in a brief filed with the Supreme Court that the court was being asked to consider whether a claim to freedom of religion can "control the behaviour of persons who do not subscribe to the same religious beliefs." It added that "the Court must be alive to the possibility that other individuals or groups may, in the future, assert sincere religious beliefs with more far-reaching implications for Crown actions than those asserted in this case."
www.theglobeandmail.com/news/british-columbia/top-court-rules-bc-ski-resort-approval-doesnt-violate-indigenous-rights
Victory at last.
All nine judges said government and a developer adequately consulted with the Ktunaxa Nation of British Columbia, and seven said that the group had tried to push freedom of religion, as protected by Section 2(a) of the Charter of Rights, beyond its limits, by protecting a spirit said to reside in a particular location.
"The state's duty under s. 2(a) is not to protect the object of beliefs, such as Grizzly Bear Spirit," seven of the judges said, in a ruling written by Chief Justice Beverley McLachlin and Justice Malcom Rowe. "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."
Two other judges, Justice Michael Moldaver and Justice Suzanne Côté, said the government had placed a reasonable limit on the freedom of religion.
The ruling has major implications for Indigenous rights to protect their spiritual practices under the Charter of Rights and Freedoms, and also for freedom of religion beyond any one community or faith group. While the Supreme Court has expanded Indigenous rights and freedom of religion over the past three decades, it has also said such rights are not absolute.
The case involves a 6,250-bed resort ski resort to be built on Crown land in the Purcell Mountains area of southeastern British Columbia. The Ktunaxa Nation calls this area Qat'muk and says it is spiritually important for its people as home of the Grizzly Bear Spirit. The B.C. government gave permission in 2012 for the development to go ahead. A private company, Glacier Resorts Ltd., proposed the resort in 1991, and has conducted consultations with the Ktunaxa people.
The Ktunaxa say they have lived on the lands adjacent to the Kootenay and Columbia rivers and the Arrow Lakes of B.C. for more than 10,000 years, and that Qat'muk is essential to their way of life.
"Qat'muk provides for our Ktunaxa cultural security in the present and continuity of that spiritual and cultural security into the future. It enables Ktunaxa citizens collectively to renew and continue, and in certain cases individually to tap into deep and anchored roots in the world as Ktunaxa. If it is developed into a ski resort, it would make our existence as Ktunaxa much more fragile," a member of Ktunaxa told a lower court in an affidavit.
The Ktunaxa Nation lost in the lower courts, and appealed to the Supreme Court. The Crown said there should be no religious veto over development.
The case represented "the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion," University of Ottawa law professors Natasha Bakht and Lynda Collins told The Globe and Mail last year, as the Supreme Court prepared to hear the case. "Sacred sites are as necessary to Aboriginal religions as human-made places of worship such as churches, temples and mosques are to other religious traditions."
B.C. argued that the rights asserted by the Ktunaxa would interfere with the rights of others, and create the possibility that the right to freedom of religion would be vastly expanded.
It said in a brief filed with the Supreme Court that the court was being asked to consider whether a claim to freedom of religion can "control the behaviour of persons who do not subscribe to the same religious beliefs." It added that "the Court must be alive to the possibility that other individuals or groups may, in the future, assert sincere religious beliefs with more far-reaching implications for Crown actions than those asserted in this case."
www.theglobeandmail.com/news/british-columbia/top-court-rules-bc-ski-resort-approval-doesnt-violate-indigenous-rights
Victory at last.
