Ski plan trumps sacred land

Top court weighs in on religion vs. commerce

A 25-year battle to approve a ski resort in the Columbia Mountains of eastern British Columbia finally staggered across the finish line at the Supreme Court on Thursday. Justice Michael Moldaver concluded the plan should go ahead despite objections from the Ktunaxa Nation, some members of which believe permanent human habitation in the area would drive away a spirit bear whose presence is key to their religious practices.

Canadian courts not being “arbiter(s) of religious dogma,” as the Supreme Court put it in a landmark 2004 case, Moldaver took no issue with the claim: ski resort goes in, spirit bear moves on. As such, he reasoned, allowing the resort to go ahead would infringe the religious freedom of the Ktunaxa “in a manner that is more than trivial or insubstantial.” Indeed, he argued, it would reduce their religious practices to “empty gestures and hollow rituals.”

But that infringement has to be balanced against the government’s duty to administer Crown land “in the public interest,” Moldaver reasoned: “Granting the Ktunaxa a power to veto development (would) exclude others from constructing permanent structures on over 50 square kilometres of public land.”

The “public” in this case includes the Shuswap Indian Band, which supports the development in the Jumbo Valley — which the Ktunaxa call Quat’muk. The government having attempted to broker all manner of compromise, to no avail, Moldaver concluded it was “reasonable in the circumstances” for it to forge ahead.

That makes sense, if you ask me. Unfortunately, Moldaver was writing only for himself and for Justice Suzanne Côté. Chief Justice Beverley McLachlin and Justice Malcolm Rowe, writing for the majority, came up with a far less convincing ruling that sets an unsettling precedent with respect to Indigenous faiths and the Charter.

If one were inclined to be uncharitable, one might doubt the sincerity of the Ktunaxa. Their belief system and values are not universally understood by members. They reside, rather, in “knowledge keepers” like Elder Chris Luke Sr., who declared any disruption in Quat’muk untenable only five years after this fact came to him in a vision.

But McLachlin and Rowe didn’t question their sincerity. Instead, like Moldaver, they took them at their word: ski resort goes in, spirit bear moves on. But they found a way to argue this wouldn’t actually infringe upon their Charter rights.

“The Charter protects the freedom to worship, but does not protect the spiritual focal point of worship,” wrote McLachlin and Rowe. “The appellants are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rath- er, they seek to protect Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it.” To extend Charter protection to Grizzly Bear Spirit’s ostensible presence in Quat’muk, they argued, would be to arbitrate religion in precisely the way the court decided it shouldn’t back in 2004.

It just doesn’t wash. Religious beliefs and practices linked to the physical world aren’t conceptually different than those that solely involve the metaphysical: belief in the spirit bear is no different than belief in the burning bush or the resurrection or transubstantiation. The practical difference in protecting “focal points” of religious belief that exist in the real world today is that it activates real-life consequences. Protecting belief in transubstantiation costs nothing; protecting belief in the spirit bear could cost whatever a ski resort might add to the economy, and set a costly precedent (although Moldaver’s analysis adds a reasonable safeguard).

It is too simplistic to say the court dismissed the very idea of a land-based religious freedom claim under the Charter, says law professor Benjamin Berger, an expert on religious freedom at Osgoode Hall Law School. Senwung Luk, a lawyer at the firm OKT who represented a First Nations intervener in the Ktunaxa case, suggests in a blog post that an Aboriginal religious practice that takes place on a piece of land might fare better than one that requires other people to stay off it.

Still, this is the first time the Supreme Court has ruled on Section 2(a) in the context of Indigenous faith, and many people of Indigenous faith are understandably disturbed and insulted. “This is a novel claim and invites this Court to extend s. 2(a) beyond the scope recognized in our law,” the justices write. “We would decline this invitation.” That’s very convenient for politicians, who have more than enough land-rights battles with First Nations as it stands. But it reads as if the justices came to that conclusion beforehand, and crafted the best case they could muster to support it. Considering how dubious that case is, people of all faiths might well wonder how seriously the justices take one of Canadians’ most fundamental freedoms.