This morning, the Supreme Court of Canada dismissed a freedom of religion case launched by the Ktunaxa Nation that sought to block development of a year-round ski resort in the East Kootenays.
The Ktunaxa believe that Grizzly Bear Spirit inhabits Qat’muk, the Jumbo Mountain region where Glacier Resorts sought to build their resort. Construction of permanent structures on the mountain would drive the spirit away. In this way, the Ktunaxa, like many other indigenous spiritualities, see the land itself as sacred or as part of the divine. This is in contrast to Western religions that typically separate the spiritual and physical realms. As such, the Ktunaxa argued that allowing development on the sacred land would destroy the focus of their worship and render their religious views moot. You can’t pray or worship what is no longer there.
This case was one of the first tests of religious freedom claims by an Indigenous group in Canada. The Ktunaxa lost at trial and the BC Court of Appeal, with both courts dismissing the freedom of religion claims and stating that the government had fulfilled its constitutional requirements to consult with the Nation.
The seven-judge majority decision, written by Chief Justice Beverley McLachlin and Justice Malcolm Rowe, agreed with the lower courts. They said that while the Ktunaxa's had a sincerely held belief, religious freedom doesn’t come into play because it’s not the government’s job “to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit.” As such, the Charter’s section 2(a) protections for freedom of religion are limited to the beliefs and actions of individuals and do not extend to protect the spirits themselves.
Justices Michael Moldaver and Suzanne Côté disagreed with this interpretation. In their judgement, Moldaver argued that if the Ktunaxa’s religious beliefs “become entirely devoid of religious significance, their prayers, ceremonies and rituals in recognition of Grizzly Bear Spirit would become nothing more than empty words and hollow gestures.” He sought not to protect the spirit but the ability of the Ktunaxa to practice their religion.
In the end, however, these two justices agreed with the majority in dismissing the case as Moldaver also found the government’s consultations to be sufficient.
The Ktunaxa have called this decision disappointing and undoubtedly many First Nations and indigenous peoples who were following it would agree. The majority ruling cites a number of international conventions on religious freedom but does not cite the United Nations Declaration on Rights of the Indigenous Peoples (UNDRIP). Both the federal and provincial government have committed to bringing UNDRIP into Canadian law as part of efforts toward reconciliation.
For secularists and Humanists, the approach of either decision, that is the acceptance or rejection of the Ktunaxa’s religious freedom claim, comes with challenges.
The majority could be said to have prioritized a Judeo-Christian approach to religious freedom claims and thus is subsequently setting aside those of indigenous peoples. This seeming preference then would represent the state breaching its duty of religious neutrality, which is both established jurisprudence and part of the BCHA’s definition of secularism.
The other portion of our definition affirms “the right of every individual to practice any religion or none, free from coercion by the government, private institutions or their community.” Clearly, the government’s decision to allow development will have an impact on the Ktunaxa’s ability to practice their religion and arguably coerces them into no longer practicing it. This can be a bit tough to swallow for an atheist who sees all religious practice as “empty words and hollow gestures” but it’s ultimately each person’s right to hold such beliefs and it’s definitely not the state’s role to undermine those beliefs.
On the other hand, the broad interpretation of religious freedom as presented by Moldaver can be seen as creating a state duty to protect the objects of spiritual beliefs themselves (as the majority put it). We oppose blasphemy laws because it’s people, not deities, who should be protected by our laws. Unfortunately, Moldaver presents no real test to discern where the limits to religious freedom are. This approach could create chaos in a situation like Jerusalem where multiple religious groups make competing claims about the connections of specific sites to their religion. Where these beliefs become intractable, the court could be left to adjudicate religious dogma.
What’s claimed should be included in the religious freedom tent is continually growing, as evidenced by the Trinity Western University law school case. While freedom of religion is a bedrock of our country, it’s not the only right, it's not absolute and a precedent here could have wide-reaching and unintended consequences.
I don’t know what side I personally ultimately come down on. I am trying to listen to the voices of indigenous people and the legal arguments they are raising. I understand the anger at this result, which undoubtedly feels like a slap in the face amidst so much talk about reconciliation.
In particular, for me, this ruling speaks to the many challenges facing our province that continues to exist on vast amounts of unceded territory. Dignity and autonomy are core Humanist values and a colonial state is an affront to that. Residential Schools and continued underfunding of First Nations communities perpetuate that injustice. Pushing through projects and developments against local indigenous peoples' concerns further aggravates those tensions. While we can wag our fingers at the churches that were deeply involved in many of these abuses, it doesn’t absolve the complicity of Canadians writ large who've supported successive governments and systemic racism.
What this ruling does, ultimately, is return the question to legislators to determine what reconciliation will look like and to First Nations who will have to prove their land claims in court if they are not satisfied by that answer.