Supreme Court: First Nation ski resort dispute – BCCLA argues freedom of religion cannot be ignored by BC government

For immediate release

OTTAWA – Tomorrow, December 1, 2016, the Supreme Court of Canada will hear oral arguments in Ktunaxa Nation v. Minister of Forests, a case concerning a proposed ski resort development on lands the Ktunaxa Nation considers sacred. The British Columbia Civil Liberties Association (BCCLA) is intervening in the case to argue that Indigenous spirituality must be protected under the Charter of Rights’ guarantee of freedom of religion.

Jessica Orkin, counsel for the BCCLA, stated: “Indigenous peoples’ spirituality is vital to who they are, and is entitled to robust constitutional protection.  For many Indigenous peoples, spiritual beliefs and practices are inextricably tied to lands they consider to be sacred.  Government actions that desecrate Indigenous sacred sites can cause profound, irreversible harm, and this reality cannot be ignored.  This case highlights the pressing need to move beyond the history of spiritual violence visited on Indigenous peoples in Canada, including through the residential school system, and instead to recognize and protect Indigenous peoples’ spirituality.”

Early in 2012, the BC government approved the disputed Jumbo Glacier ski resort development in an area of the southeastern Purcell Mountains known as Qat’muk. The Ktunaxa Nation challenged the approval in court, arguing that the BC government ignored that Qat’muk is a location of deep spiritual significance to them, forming a necessary part of their spiritual practices, beliefs and identity, and that the decision to approve the development is an unjustified violation their Charter right to religious freedom. The BC courts rejected this claim, and the Ktunaxa appealed to the Supreme Court of Canada.

The Supreme Court now faces the question of whether the Charter guarantee of religious freedom is violated by the development of an Indigenous sacred site that, according to the uncontradicted evidence in the case, would destroys its spiritual character. The Ktunaxa evidence is that Qat’muk is the home to Kⱡawⱡa Tukⱡuⱡakʔis, or Grizzly Bear Spirit, and that the Spirit would leave if the mountain were developed. The Ktunaxa led evidence of their belief that if the Grizzly Bear Spirit leaves, they will no longer receive spiritual assistance and guidance from that spirit, and will be unable to carry on their spiritual practices, which depend on the continuing presence of the Grizzly Bear Spirit at Qat’muk.

Josh Paterson, Executive Director of the BCCLA, stated: “Ktunaxa Nation claims the same protection that people of faith have sought for centuries – the protection of their sacred sites from destruction. Instead of taking that concern seriously, the BC government failed to properly consider the impact of its ski resort approval on the freedom of religion of the Ktunaxa people. Any reasonable person would recognize that a proposal to destroy the holiest sites of other faiths, like the Church of the Nativity in Bethlehem or the Temple Mount, would have a deep impact on the people of those faiths. Our governments should give the same respect to the faiths that are Indigenous to this land and their holiest sites.”

The BCCLA is intervening in support of the right of Indigenous communities to protect their sacred sites from desecration. The BCCLA will argue that in order for freedom of religion to have meaning, protection for freedom of religion must not only include spiritual practices, but the underlying spiritual beliefs and sacred sites, within Canada, that are vital to those beliefs. The BCCLA argues that to ignore the centrality of sacred sites in Indigenous spirituality would result in the denial of meaningful Charter protection for Indigenous religious communities.  Instead, governments and courts must consider the important connections between land and sacred sites and the spirituality of Indigenous peoples, rather than viewing Indigenous spirituality through a lens in which the supreme being’s continued existence is not believed to depend on a particular piece of land.

The Court will also consider whether the BC government met its constitutional duty to consult and accommodate the Ktunaxa Nation regarding the development.

The BCCLA is represented by Jessica Orkin and Adriel Weaver of Goldblatt Partners LLP.

Read the BCCLA’s argument in support of the religious freedom of Ktunaxa Nation.

What: Supreme Court of Canada will hear oral arguments in Ktunaxa Nation v. Minister of Forests.

When: Oral arguments before the Court begin Thursday, December 1, 2016 at 6:30 am PT/9:30 am ET.

Where: Supreme Court of Canada (Ottawa, Ontario)

Who: Bilingual BCCLA representatives are available in Ottawa and Vancouver for comment