COURT DECIDES BELIEFS, NOT LAND, MOST SACRED
Ktunaxa elder Chris Luke Sr. lives in B.C.’s Purcell Mountains, about 1,000 kilometres east of Vancouver. He doesn’t speak English and he knows how to keep his silence.
Still, Luke is a powerful man.
For eight years, the elder’s religious vision has seized the attention of Canada’s top courts, demanding the focus of hundreds of lawyers, judges, civil servants and politicians.
Their work became necessary because Luke said he had an epiphany in 2004 — which he did not reveal to his people until 2009 — that the grizzly bears that inhabit a large chunk of public land in the Purcells are sacred, divine protectors.
As a result, Luke’s small tribal group entered into years of hard political negotiations with the B.C. government, which turned into a precedent-setting court case against developers of a ski resort called Jumbo Glacier.
The case, which Luke and his people lost this month in the Supreme Court of Canada, not only raised profound questions about Canada’s commitment to protect religious freedom, it opened a bigger cans of worms. It highlighted philosophical, ethical, anthropological and religious issues.
Four of the broad questions from Luke’s case are: Who decides what is “sacred?” Are religious beliefs static? Is Indigenous spirituality monolithic? Do aboriginals consistently respect the land?
In the case, known as “Ktunaxa Nation versus British Columbia,” the elder was put forward as the sole source of religious truth.
“The record is clear that the Ktunaxa ( believe) only certain members of the community, knowledge-keepers, possess information about spiritual values, and that only Mr. Luke could speak to these matters,” wrote the judges.
The Supreme Court of Canada agreed the Ktunaxa were “sincere” in following Luke’s vision of the “Grizzly Bear Spirit.” But the judges noted the Ktunaxa had believed for less than a decade that the grizzly territory they call Qat’muk was of utmost spiritual significance.
The judges concluded timing didn’t matter, though. “Whether this belief is ancient or recent plays no part in our analysis. The Charter protects all sincere religious beliefs and practices, old or new.”
In other words, Canadian courts are obliged to take seriously almost anybody who convinces their followers that land in B.C., or anywhere, is absolutely sacred.
Theoretically, Luke could have been a New Age guru from, say, Los Angeles, who persuaded a group to “sincerely” believe parts of Saskatchewan, or Mississauga, were untouchable. The potential is high for arbitrariness.
Even though the Ktunaxa lost their case, two of nine Supreme Court judges (and many aboriginals and their supporters) believe the majority made a mistake in refusing to stop the ski development for religious reasons.
In general, I tend not to champion giant ski resorts, nor shopping malls nor casinos, whether on public, private or Aboriginal land. Like many Canadians, I also strongly support reconciliation with Canada’s Indigenous populations, along with the treaty process.
But, with the Ktunaxa case, it’s hard not to think the majority of judges were more reality-based than the dissenters.
One of the flaws in the Ktunaxa lawyers’ arguments was in the definition of sacred. Who decides what is sacred? And what rights does that give those who claim it?
The court concluded understandings of “sacred” are subjective. In a pluralistic society, one person’s sacred is another person’s profane.
So, instead of legally protecting a physical place or object that some claim sacred, the only thing Canada’s courts rightly felt justified in guarding is religious expression (which includes giving Sikhs the right to carry kirpans, or ceremonial knives).
Beyond the legal angles, the Ktunaxa case also brings up many broad religious issues, including about whether faiths are static.
Though many think religions such as Christianity or Islam are set in stone when they’re founded, many others believe they change over time. The Ktunaxa case inadvertently confirmed how a group’s theology can dramatically evolve, since the court found no evidence they believed in the “Grizzly Bear Spirit” before contact with Europeans.
The case also touches on the question: Are Canadian Indigenous beliefs monolithic?
The two dissenting judges seemed to assume so, with Judge Michael Moldaver saying things such as, “There is an inextricable link between spirituality and land in Indigenous religious traditions.”
But no judge mentioned the wide religious diversity among Canada’s 1.7 million Indigenous people, including that two of three are Christian. That includes many Ktunaxa. Dream Catchers: How Mainstream America Discovered Native Spirituality, by Philip Jenkins, is one of many books describing how eclectic and syncretistic Indigenous spirituality has been, including in the way such things as smudging rituals have been loosely borrowed and adapted.
We cannot assume religious uniformity among Indigenous people or anyone else, even though the dissenting judge appeared to do so — somewhat naively, romantically.
Canadian scholar Rod Preece’s Animals and Nature has detailed hundreds of ways North American Indigenous people have, through the centuries, mistreated the land and animals.
That includes the way prairie natives killed thousands of buffalo at a time, wasting their meat, sometimes just taking their tongues. It also entails recent events, such as the Inuit hunter on his snowmobile who chased 162 wolves to their deaths and B.C. Aboriginals joining nonAboriginals in overfishing.
North American aboriginals’ often ambivalent approach to nature also suggests itself when tribal groups erect unsightly billboards and casinos on what is supposedly “sacred” land, along with huge commercial developments, such as the new Tsawwassen mall.
Such troublesome realities, however, didn’t stop Judge Moldaver from playing the role of a religion expert when he insisted Aboriginals are unique in their firm belief physical things are sacred.
That’s unlike those who follow “Judeo-Christian faiths,” Moldaver claimed, “where the divine is considered to be supernatural.”
Thousands of religion scholars would disagree with the judge’s generalization. They might cite the Christian theology of “incarnation,” which teaches God is embedded in every natural thing, not to mention the commitment of Jews and Muslims to their Holy Lands.
Moldaver’s awkward attempts at theology serve as a reminder of why Canadian courts have decided never to rule on what is religiously “orthodox.”
To be fair, the dissenting judge was trying in his way to further the valuable process of reconciliation with Canada’s aboriginals.
But the majority of judges went ahead and did so: By clarifying that ostensibly political claims about who controls public land cannot be made on religious grounds.
One must not lose sight of the fact that our courts are plugged with unrepresented litigants … Courts struggle daily with litigants who cannot afford legal assistance to establish their rights. Lee Rankin, letter writer There is an inextricable link between spirituality and land in Indigenous religious traditions.
MICHAEL MOLDAVER, Supreme Court of Canada