The Supreme Court stated that “the Charter protects the freedom to worship, but does not protect the focal point of worship.”
In a split decision delivered on November 2, the Supreme Court ruled that Qa’tmuk, a traditional sacred site of the Ktunaxa Nation, did fall under the protection of the 2a Charter right to freedom of religion. The decision provides critical insight into the Court’s interpretation of the scope of religious freedom.
The Ktunaxa are a First Nation in B.C. who challenged the Crown’s approval for the development of a ski resort in south-eastern B.C. The area is also sacred site known as Qat’muk, and is home of the Grizzly Bear Spirit who is of central importance to the Ktunaxa. A permanent human habitation via the proposed ski resort would cause the Grizzly Bear Spirit to leave Qat’muk and cause irreparable harm to the Ktunaxa’s identity and culture.
The Majority decision found that the Ktunaxa’s 2a rights were not violated because neither their freedom to hold or manifest their belief were infringed by the Minster’s decision. In this case, the Court was unwilling to extend protection to the “Grizzly Bear Spirit itself and the subjective spiritual meaning [the Ktunaza] derive from it,” on the grounds that it is inappropriate for the belief itself to be subjected to judicial scrutiny. The Minority decision found an infringement under 2a, but took the position that the Minister’s decision to allow the development was reasonably limited by the Crown’s objective.
The decision has faced significant criticism for its narrow interpretation of the scope of 2(a) – essentially signalling that there will be little or no protection available under the Charter for Indigenous beliefs that are land-based. This “Eurocentric” approach is particularly inconsistent with the project of reconciliation with Indigenous peoples, and with the United Nations Declaration on the Rights of Indigenous Peoples, which was proudly adopted by the Liberal government in May 2016. It is also inconsistent with international jurisprudence; courts in India and New Zealand, for instance, have repeatedly upheld Indigenous rights to refuse development on sacred sites.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.