West Kootenay supporters of Ktunaxa Nation disappointed by Supreme Court of Canada decision

Supporters of the Ktunaxa Nation were disappointed by a Supreme Court of Canada decision Thursday.

The Ktunaxa Nation argued its case in the Supreme Court of Canada that a proposed ski resort in the Jumbo Valley, an area known to the First Nation group as Qat’muk, is an infringement of their Charter right of religious freedom.

Local supporters of the Ktunaxa Nation were disappointed Thursday after the Supreme Court of Canada dismissed the nation’s appeal that argued the approval of a ski resort at Qat’muk infringed upon their freedom of religion.

The Ktunaxa Nation brought a petition for judicial review against the Minister of Forests, Lands and Natural Resources Operation, and Glacier Resorts Ltd., after the minister declared that reasonable consultation with the Ktunaxa had occurred regarding a ski resort Glacier Resorts wants to develop near Invermere and approved the project.

The Ktunaxa claimed that the decision made by the minister to approve the Jumbo Glacier Resort infringed upon their right to religious freedom as outlined in section 2 (a) of the Canadian Charter of Rights and Freedoms, as Qat’muk — the Ktunaxa’s name for the area where the ski resort would be built — is home to Grizzly Bear Spirit and building the resort there would cause Grizzly Bear Spirit to leave.

The Ktunaxa also claimed that the minister’s decision that there had been adequate consultation and accommodation as per section 35 (Right of the Aboriginal People of Canada) of the Constitution Act, 1982 was unreasonable.

That petition was dismissed by both the BC Supreme Court and the BC Court of Appeal — and now the Supreme Court of Canda has dismissed it as well.

Reverend Greg Powell is from the Kootenay Presbytery of the United Church of Canada in Castlegar and travelled to Ottawa to support the Ktunaxa during the appeal back in December.

He was disappointed with the decision.

“We joined the coalition to intervene on behalf of the Ktunaxa because we saw a First Nation’s religious rights about to be paved over for the sake of another ski resort. As Christians, we have always enjoyed the right to practice our religion freely in what is now called Canada. We want the same for our Indigenous siblings,” he said in a press release.

The West Kootenay EcoSociety, which has opposed the development for a number of years, was also disappointed.

“We’re disappointed with the decision by the Supreme Court. We think that the Ktunaxa’s religious and cultural rights are incredibly important in this case and it’s a shame that the Supreme Court of Canada has ruled against them,” said Matthew Carroll, co-executive director of the EcoSociety.

Seven of the nine justices concluded that the minister should have discussed the freedom of religion claim, but “his failure to conduct an analysis of the Ktunaxa’s right to freedom of religion is immaterial because the claim falls outside the scope of s. 2 (a).”

They concluded that the right protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs” but that it does not make the state responsible for protecting the object of beliefs.

“The state’s duty under s. 2(a) is not to protect the object of beliefs, such as Grizzly Bear Spirit. 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,” read the joint reasons for judgment delivered by Chief Justice McLachlin and Justice Rowe.

Rev. Powell found the decision interesting.

“If the state is going to uphold a person’s right to believe something and to manifest that belief and there is an action which could completely undermine that belief — so take any meaning out of that belief — then I think the state does have a duty to protect that object in that case,” he said.

“I’ve been thinking about this ever since I encountered the case, actually, … a year and a half ago and I still haven’t thought of an analogy in Christianity. Some people have compared it to a cathedral, but it’s not that. In Christianity, it might compare to Jesus himself, but even then it doesn’t quite map over quite the same way. So I think that’s one reason maybe why the justices ruled that way is because it’s so difficult in dominant culture to relate it to a religion that we’re maybe more familiar with than the Ktunaxa spiritual beliefs,” Powell added.

But two of the justices, Moldaver and Côté, offered a dissenting opinion, concluding that the Ktunaxa’s right to religious freedom would be infringed upon by the resort.

“In my view, the Ktunaxa’s right to religious freedom was infringed by the Minister’s decision to approve the development of the ski resort proposed by the respondent Glacier Resorts Ltd. The Ktunaxa hold as sacred several sites within their traditional lands, and they revere multiple spirits in their religion. The Ktunaxa believe that a very important spirit in their religious tradition, Grizzly Bear Spirit, inhabits Qat’muk, a body of sacred land that lies at the heart of the proposed ski resort. The development of the ski resort would desecrate Qat’muk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the land. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. All songs, rituals, and ceremonies associated with Grizzly Bear Spirit would become meaningless,” read the partially concurring reasons delivered by Moldaver.

That being said, Moldaver and Côté still took the position that the minister “proportionally balanced” the Ktunaxa’s religious right with “the relevant statutory objectives: to administer Crown land and dispose of it in the public interest.”

“The Minister was faced with two options: approve the development of the ski resort or grant the Ktunaxa a right to exclude others from constructing permanent structures on over fifty square kilometres of Crown land. This placed the Minister in a difficult, if not impossible, position. If he granted this right of exclusion to the Ktunaxa, this would significantly hamper, if not prevent him, from fulfilling his statutory objectives. In the end, it is apparent that he determined that the fulfillment of his statutory mandate prevented him from giving the Ktunaxa the veto right that they were seeking,” read Moldaver and Côté’s reasons.

Powell was interested in this conclusion.

“I’m intrigued by the fact that a ski resort is more in the public interest than upholding the spiritual beliefs and rights of an Indigenous nation. I mean, as a skier, I don’t take that to be the case actually,” he said.

All nine judges concluded that the minister’s decision that consultation and accommodation had been sufficient to satisfy the requirements of section 35 of the Constitution Act, 1982, was not unreasonable.

Thought the Supreme Court ruled against the Ktunaxa, Glacier Resorts still has more hurdles to clear on the road to development, and the West Kootenay EcoSociety hopes that the provincial government will step in.

“The provincial government that’s now in power has said that they’re opposed to the project,” said Carroll, referring to the NDP’s objections to the project when they were the opposition. “So we’re really looking now to the province to take leadership in standing with the Ktunaxa Nation in protecting that area for all time.”

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