Supreme court ruling clears way for B.C. ski resort on sacred Indigenous land

Posted on November 2, 2017 in Governance Policy Context – News/Politics – 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
November 2, 2017.   BRIAN PLATT

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 manifest 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.

Conceptual sketches show buildings designed and constructed in the traditional Canadian mountain architecture style. Jumbo Valley Resort

In 2009, the Ktunaxa declared that permanent structures and human settlement on the land would drive the spirit from the land, making their rituals meaningless. In other words, no accommodation with the resort was possible.

When the B.C. government gave final approval to the project in 2012, the Ktuxana immediately appealed, arguing it violated their right to freedom of religion, 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.

Two justices, Michael Moldaver and Suzanne Côté, 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.

The decision also says the Constitution Act’s requirement to dutifully consult with First Nations was met by the government, which had made significant concessions and scaled back the resort’s size during the years of consultation. The concessions had been enough to get the approval of the Shuswap Indian Band, which also claims the land as their traditional territory.

On the freedom-of-religion issue, the court’s decision did not dispute that the Ktunaxa “sincerely believe in the existence and importance” of the grizzly bear spirit and that development in the Jumbo Valley would drive the spirit from that place.

But the court ruled the Charter right does not require the government to protect the presence of the spirit in the valley.

It went on to say that ruling in favour of the Ktunaxa would put Canadian courts in the position of having to put “deeply held personal beliefs under judicial scrutiny.” The court has ruled in the past that the Charter simply protects sincerely held beliefs, rather than conducting an inquiry into the merits of those beliefs.

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