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