Canada’s Supreme Court rules against tribe in development dispute


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In a case that appears similar to the dispute in Hawaii over the building of the Thirty Meter Telescope, Canada’s Supreme Court this week ruled against a local tribe in its more than quarter century battle to block the construction of a nearby ski resort.

The Ktunaxa Nation had opposed a resort on Crown land near their community in southeastern British Columbia, arguing that it would affect a grizzly-bear habitat and drive away the Grizzly Bear Spirit essential to their faith.

But, in a line that stunned some academic observers, seven judges of nine said that they looked on the religious-freedom claim under Section 2(a) of the Charter of Rights no differently than if it were made by non-Indigenous. They said the Ktunaxa claim fell entirely outside of the Canadian notion of freedom of religion, as established in previous Charter cases, which protects only the right to hold and manifest beliefs.

“In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship,” Chief Justice Beverley McLachlin and Justice Malcolm Rowe wrote for the seven judges. The court also affirmed that, while developers and government need to consult with Indigenous peoples and accommodate their concerns, the First Nations possess no veto power over development.

What I find interesting about this story is that the developer first proposed this ski resort in 1991, and has spent 26 years consulting and then fighting with the local tribes. Talk about stick-to-it-ness! Moreover, the insincerity and delaying tactics of one tribe are revealed by this quote:

It was only in 2009, the Supreme Court said, as the proposal appeared on the verge of approval, that the Ktunaxa first mentioned the Grizzly Bear Spirit and said that no accommodation was possible.

It is important to note that the land in question is privately owned by the resort, and that the tribe essentially wanted a full veto over the rights of that private owner to use their land as they wished. The Supreme Court ruled that the tribe does not have that right. Had it agreed to this demand, the court would have essentially given the tribe the power to rule over everyone else in Canada, on almost any issue the tribe wished. All they would have had to do is to come up with some religious excuse (as it appears they did here).

Hat tip Peter Arzenshek.

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6 comments

  • Phill O

    Under the current administration, I find this decision rather startling: I like it but it is startling for this government.

  • Kirk

    Bob, you write “It is important to note that the land in question is privately owned by the resort …”, but the article calls it “a resort on Crown land”. I don’t understand how things work up in Canada, but is Crown land synonymous to Federal land in the US?

  • Kirk: You could be right and the land is government controlled. The article however overall gave me the impression that the land was privately owned. Commenter Phill from Canada would be the best person to clarify.

    Either way, the tribe did not own the land, but was trying to impose its control over it.

  • Ted

    I don’t wish to sound biased but I can think of three episodes in recent history where sacred Indian lands were given up for major projects after the proper amount of money changed hands.

    1). The construction of the state power authority reservoir behind the Robert Moses power plant on Niagara Falls.

    2) The purchase of the land in, around and behind the kinzua dam in PA

    3) The building of I88 along the southern part of NYS which went thru Seneca Indian reservation.

    I did student teaching in Salamanca NY and had Indian kids, white kids and black kids. They were all just high school kids like anywhere else.

    It just seems that religious objections of Indian ruling bodies are often swept away when there is money available.

    If I’m wrong I don’t mind being corrected, but I grew up in that area.

  • pzatchok

    If native tribes are so afraid of development on sacred land then they can just buy it and close it to development. Then find a way to have it declared reservation land.

    I bet the federal government would be willing to let any contiguous land owned by the tribe to be declared reservation land.

  • Phill O

    The $buck stops here! IMO

    Crown land is owned by the federal government. There is a push by some bands to have all crown land belong to them since they were here first and the liberals are so apologetic for taking it from them. Then things change when the money flows. The ring road around Calgary is a good example. When the government changed the route of the bypass not to go across reserve, things changed real quick. The new route would have not had an exit to go to the native casino.

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