Decision reached in landmark case
Supreme court ruling clearswayforB.C.ski resort on sacred Indigenousland
In a landmark freedom-of-religion case, the Supreme Court of Canada has ruled that a massive ski resort development in southeast British Columbia can go ahead despite a claim by a First Nation that it violates sacred land.
The decision clarifies a boundary on the Charter right to freedom of religion, establishing that the government does not have a duty to protect an object of religious beliefs. Instead, the duty is to protect the right to hold such beliefs and to practice those beliefs in worship.
“In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship,” the decision says.
The legal saga over building a year-round ski resort in B.C.’s Jumbo Valley has spanned 26 years, as developers first started the application process in 1991. The land is considered sacred by the Ktunaxa Nation because it’s home to the “grizzly bear spirit,” central to their religious beliefs and rituals.
In 2009, the Ktunaxa declared that permanent structures and human settlement on the land would drive the spirit from the area, making their rituals meaning less. In other words, no accommodation with there sort was possible.
When the B.C. government gave final approval to the project in 2012, the Ktuxana immediately appealed, arguing it violated their religious freedom as well as the requirement to be meaningfully consulted. Their appeal was dismissed in both the B.C. Supreme Court and the B.C. Court of Appeal.
The Supreme Court ruled the approval of the ski resort did not violate section 2( a) of the Charter, which guarantees the right to freedom of religion.
“The K tun ax a’ s claim does not fall within the scope of s.2 (a) because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the minister’s decision to approve the project,” said the decision, written by Chief Justice Beverley McLachlin and Justice Malcolm Rowe.
Two justices, Michael Moldaver and Suzanne Cote, wrote a separate but concurring decision that also came down in favour of the B.C. government, but argued the religious freedom right had indeed been violated. However, they concluded the violation was proportionate and justifiable, given the government’s objectives.
“We’re very disappointed in the decision,” said Perry Bellegarde, national chief of the Assembly of First Nations, speaking in Ottawa on Thursday. He said that for Indigenous peoples, “our church is the environment.”
“For us, more work needs to be done about educating the judicial branch about aboriginal rights, inherent rights, treaty rights,” he said. “I think if that was done, it would have been a different outcome, but people lack that understanding.”
The decision also says the Constitution Act’ s requirement to consult with First Nations was met by the government, which had made significant concessions and scaled back the resort area’s size by 60 per cent during the two decades of consultation. The concessions had been enough to get the approval of the Shuswap Band, which also claims the land as their traditional territory.
Complicating the matter, the First Nations still have unproven land claims to the area, but the Supreme Court decision said that needs to be settled through a separate trial, not through these proceedings.
On the freedom-of-religion issue, the court’s decision did not dispute that the Ktunaxa “sincerely believe” in the grizzly bear spirit and that it would be driven away from the Jumbo Valley if the development happened.
But the court ruled that“adjudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs.”
The court has ruled in the past that the Charter protects any sincerely held religious belief, regardless of its merits.