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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