In the News: Supreme Court Rejects Privilege for Aboriginal Spirituality

Top court deals blow to Indigenous peoples, Nathan VanderKlippe, The Globe and Mail, 2017-11-02

The Supreme Court of Canada has declined to grant special protection for religious freedom for aboriginal peoples, ruling that a private ski resort in British Columbia can be built on a site sacred to an Indigenous community. 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.

[…] seven judges of nine […] 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.”


Kathryn Teneese, chair of the Ktunaxa Nation Council, said the court’s ruling was deeply disappointing. The Ktunaxa Nation will continue to do what it can, she said, to provide protection in the area they call Qat’muk. “That’s the task that was given to us by the creator and no one else can take that away from us. […]”


Richard Moon, a law professor at the University of Windsor and author in the area of religious freedom, said direct conflicts may arise when a religious practice is at odds with public values or policies. “Imagine if I had a sincere belief (and perhaps even shared this belief with a group) that the construction of skyscrapers breached God’s will – that they were Towers of Babel that will bring God’s wrath down upon us all. My claim under s.2 (a) to halt the construction of a skyscraper would be rejected by the courts out of hand. […]”

This is a reasonable decision because the Court has refused to grant a privilege on the basis of religious belief. The declaration of the Ktunaxa Council chair that protecting the area was “the task that was given to us by the creator” is clearly gratuitous, on a level similar to the irrational beliefs of Christianity or other religions. The fact that Indigenous religions were subjected to persecution in the past does not justify any privilege today, just as the fact that Christians are persecuted in Egypt does not justify any privilege for Christianity.

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