Ruling draws line on religious freedoms
Ski resort development gets go-ahead despite First Nations’ efforts to protect sacred land
OTTAWA — In a landmark freedom-of-religion case, the Supreme Court of Canada has ruled that a big ski resort development in southeast B.C. 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 practise 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 yearround 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 meaningless. In other words, no accommodation with the resort was possible.
The current proposal calls for a $900-million resort that would have more than 6,000 bed units, provide ski-lift service to four nearby glaciers and create 750 permanent jobs.
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 Ktunaxa’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 Côté, wrote a separate but concurring decision that came down in favour of the B.C. government, but argued the religious freedom right had been violated. However, they concluded the violation was proportionate and justifiable, given the government’s objectives.
Kathryn Teneese, the Ktunaxa Nation Council chair, said she was “extremely disappointed” to learn of the decision. She said the Ktunaxa will now discuss next steps among themselves, but will continue to look for ways to protect their sacred land.
Teneese, speaking in West Vancouver, said the debate over the resort has unfairly portrayed the First Nation as being opposed to any public use of the land.
“We feel that there can be ways that that area can be utilized by all people; all we’ve said is that should not require us to have any kind of permanent habitation in that area,” she said. “We didn’t say that we don’t want people there, we didn’t say that we don’t want recreation to occur. We just said the way (the resort) was described to us by the proponent, we don’t believe that’s workable.”
In Ottawa, Perry Bellegarde, national chief of the Assembly of First Nations, said it seems the justice system still has trouble grappling with the relationship between First Nations people and the environment.
“For us, more work needs to be done about educating the judicial branch about inherent rights, Aboriginal rights, treaty rights,” he said.
“I think if that was done, I think it would have been a different outcome. But people lack that understanding.”
The court decision also said 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 total size by 60 per cent during the two decades of consultation. The concessions had been enough to get the approval of the Shu swap Band, which also claims the land as their traditional territory, but not the Ktunaxa.
“Where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group,” the decision said.
In a statement, the project’s developer Glacier Resorts said it is “very pleased that the ruling has brought an end to the long delays to the project caused by the Ktunaxa’s appeal.”
Though there are still more regulatory barriers to clear before construction could begin, Glacier Resort’s board chair Arnold Armstrong said the project can now move forward.
“We seek to work in a co-operative spirit and believe that the common good and the beauty of the project will ultimately bring people together,” Armstrong said in the statement.