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Toronto Star: Supreme Court Rules Against BC First Nation Desire to Protect a Place of Indigenous Cultural Value
Tonda MacCharles | November 2, 2017

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Supreme Court approves B.C. ski resort development on Indigenous lands

https://www.thestar.com/news/canada/2017/11/02/supreme-court-approves-bc-ski-resort-development-on-indigenous-lands.html

From Issue No. 262 | November 3, 2017

In a landmark decision on how courts should protect not only Indigenous religious beliefs, but all religious belief, the Supreme Court of Canada ruled Thursday that a British Columbia First Nation, the Ktunaxa people, could not block the development of a ski resort in the Jumbo Valley.

 
In a landmark decision, the Supreme Court of Canada ruled Thursday that a British Columbia First Nation could not block the development of a ski resort in the Jumbo Valley in British Columbia. The decision was 9-0, written mainly by Chief Justice Beverley McLachlin (pictured), writing with Justice Malcolm Rowe.

OTTAWA—The constitutional guarantee of aboriginal rights does not give Indigenous groups the right of a veto over land development in the name of religious freedom, says the country’s top court.

In a landmark decision on how courts should protect not only Indigenous religious beliefs, but all religious beliefs, the Supreme Court of Canada ruled Thursday that a British Columbia First Nation, the Ktunaxa people, could not block the development of a ski resort in the Jumbo Valley.

The high court ruled that the constitution’s religious freedom guarantee protects Canadians’ freedom to hold religious beliefs and to act in accordance with them, but does not require the state or courts to protect the “object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit.”

“Rather the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice, or by teaching and dissemination.”

The high court said the provincial government’s decision to approve the project and efforts over two decades to accommodate the religious beliefs and practices of the Ktunaxa people were reasonable, and entitled to deference by the courts.

The decision was 9-0, written mainly by Chief Justice Beverley McLachlin, writing with Justice Malcolm Rowe. Justices Michael Moldaver and Suzanne Côté wrote separate but concurring reasons.

The court didn’t set out new ground on the duty of government’s to consult and accommodate aboriginal rights, however it set new limits on what the religious freedom guarantee in the Charter really means.

The case pitted the religious freedom and aboriginal rights of the Ktunaxa (pronounced TeNaHa) against the B.C government and the company Glacier Resorts. 

The Ktunaxa Nation Council, representing the people whose traditional territorial claim straddled the Canada-U.S. border, opposed a proposal by Glacier Resorts. The company wanted to build a year-round overnight ski resort in the Jumbo Valley, about 55 kilometres west of Invermere, with lifts to glacier runs that were previously reachable via helicopter — a $900 million project that would create up to 800 permanent direct jobs.

The high court said negotiations and consultations “are a two-way street.”

When the Indigenous community’s representatives, late in the process, finally asserted in 2009 what the high court called a “novel claim” — that development must be barred altogether to protect the presence of the Grizzly Bear Spirit itself and the “subjective spiritual meaning they derive from it” — the court said the Ktunaxa got it wrong.

Editors Notes: The Truth and Reconciliation Commission recommended that places of significance for Indigenous People be protected by the federal government, yet there remains no effective federal mechanism to do that. This case points to the challenges in identification and protection. Hope it is not too late for Cabinet to step in and find a solution.
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