For the second time in as many months, a Canadian court has decided a case in which geography plays a major role.
In September, I discussed a B.C. Supreme Court case in which the court was called upon to decide the western boundary of Treaty 8 in northeastern B.C. In a case released a little more than a week ago, the Supreme Court of Canada considered whether approval of a ski resort in southeastern B.C. would infringe upon the right to freedom of religion of the Ktunaxa people by driving their Grizzly Bear Spirit away from its home in the Jumbo Valley. The Court ruled it did not.
The case has a long history: Glacier Resorts first sought approval from the B.C. government for its Jumbo Glacier Resort in 1991. The Jumbo Valley is located in the East Kootenay region of southeastern B.C., west of the Town of Invermere and an existing ski resort, Panorama Mountain Village. It is also located in the traditional territory of the Ktunaxa people, which comprises northeastern Washington, northern Idaho, northwestern Montana, southwestern Alberta and southeastern B.C.
The Ktunaxa call the Jumbo Valley Qat’muk and assert that it is a place of spiritual importance to them. Notably, it is home to an important population of grizzly bears and to Grizzly Bear Spirit, “a principal spirit within Ktunaxa religious beliefs and cosmology.” As noted by the court, it was undisputed that the Ktunaxa believe that Grizzly Bear Spirit inhabits Qat’muk and is central to Ktunaxa religious beliefs and practices.
For almost 20 years, Glacier Resorts and the provincial government consulted with the Ktunaxa about the proposed ski resort. Notwithstanding that several changes were made to the design of the resort in an effort to accommodate the Ktunaxa’s concerns, in 2009 they drew a line in the sand: any construction of permanent structures in Qat’muk would desecrate the area by driving out Grizzly Bear Spirit, thereby destroying the foundation of Ktunaxa spiritual practice.
Section 2(a) of the Canadian Charter of Rights and Freedoms states that freedom of conscience and religion are fundamental rights; the Ktunaxa argued that by driving Grizzly Bear Spirit out of Qat’muk, the project would remove the basis of their spiritual beliefs and render their practices futile. The vitality of their religious community, the Ktunaxa asserted, depends on maintaining Grizzly Bear Spirit in the geographic location of Qat’muk.
Following earlier case law, the Supreme Court confirmed that section 2(a) of the Charter has two aspects: the freedom to hold religious beliefs and the freedom to manifest those beliefs. To establish an infringement of the right to freedom of religion, a claimant must demonstrate first that he or she sincerely believes in a practice or belief that has a nexus with religion, and second, that the impugned conduct interferes, in a manner that is neither trivial nor insubstantial, with his or her ability to act in accordance with that practice or belief.
The court accepted that the Ktunaxa sincerely believe in the existence and importance of the Grizzly Bear Spirit and that permanent development in Qat’muk would drive this spirit from the valley. However, the court refused to accept that approval of the project would interfere with the Ktunaxa’s ability to act in accordance with this belief. The Court noted that the appellants were not seeking protection to believe in Grizzly Bear Spirit or to pursue practices related to it but instead, to protect Grizzly Bear Spirit itself. The court ruled that this was beyond the scope of the protection provided by section 2(a) and rejected the Ktunaxa’s argument on this point.
The Ktunaxa case confirms that while section 2(a) of the Charter protects the freedom to worship, it does not protect the spiritual focal point of worship. In other words, section 2(a) protects the believer, not the belief. And where the belief is rooted in a specific geographical location, section 2(a) cannot be used to protect that location.
The Ktunaxa have since called for a legally-defined Indigenous protected area to protect all of Qat’muk, not just around the proposed development area in the Jumbo Valley, but also the surrounding peaks, valleys, rivers and glaciers in the Central Purcells. Meanwhile, the ski resort faces a further legal battle with the province over its environmental assessment certificate, which was cancelled in 2015.