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Ktunaxa decision has some positive elements

By Deborah Gyapong
Canadian Catholic News


OTTAWA (CCN) — The Ktunaxa Nation may have lost the first religious freedom case involving indigenous spirituality Nov. 2, but Christian intervenors still see positive signs in the decision.

The case involved the development of a ski resort in an area called Qat’muk deemed sacred to the Ktunaxa “because it is home to Grizzly Bear Spirit, a principle spirit within Ktunaxa religious beliefs and cosmology,” said the 7-2 decision of the court.

The majority held that the British Columbia Forestry, Lands and Natural Resource Operations Minister’s decision to allow the ski resort to go ahead did not violate religious freedom rights, “because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the minister’s decision.”

The Ktunaxa “are not seeking protection for the freedom to believe in Grizzly Bear Spirit, or to pursue practices related to it,” the judges wrote. “Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it.”

The judges called this claim “novel” and added it would “put deeply held beliefs under judicial scrutiny.”

The court held the Charter’s 2a protections do not “protect the object of beliefs or the spiritual focal point of worship.”

However, the minority decision by Justice Moldavor held that while the duty to consult with the Ktunaxa Nation was met, their religious freedom would be impaired. “The development of the ski resort would desecrate Qat’muk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the land.”

While a blow to the nation’s religious beliefs, the Evangelical Fellowship of Canada (EFC) and the Christian Legal Fellowship (CLF), two groups that intervened jointly in the case, see positive signs in the decision and that of the minority.

“The majority’s reasons reaffirm that the Charter protects both the public and communal aspects of religion — not just the individual and private — and that courts must not entangle themselves in religious matters by assessing the content and merits of personal beliefs,” said Derek Ross, executive director and legal counsel for the Christian Legal Fellowship, in a joint news release with the EFC. “The decision also clarifies that the Charter protects both ‘old’ and ‘new’ religious beliefs and practices — this allows for the possibility that one’s sincere religious beliefs may develop and mature over time.”

“The minority’s reasons provide a salient reminder that it is not just the act of religious exercise that attracts Charter protection, but the religious or spiritual essence of that act,” Ross said. “The Charter ought to be interpreted in a way that reflects the unique aspects of diverse religious traditions, beliefs, and practices — particularly those of minority communities or those not widely understood.”


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