One of the biggest problems First Nations have always had is having non First Nations people understand what is important to us and why. The Supreme Court of Canada decision rendered yesterday in the case of Ktunaxa Nation v. British Columbia shows that clearly.
The other problem we have is the requirement to put our way of life, our rights, and our governance within definitions of non First Nation people, their values and legal systems. Round peg, square hole, it just doesn’t work.
The Ktunaxa decision is about the right to religion, and religion in the non First Nation sense is very different than what First Nations would define. First Nations religion is hard to define and it is more like spirituality and each First Nation have their own way of carrying out their own spiritual practices. Many spiritual practices can occur on the land and for me, I have often said the forests are our cathedrals. For the Ktunaxa one of their important spiritual practices included being on Jumbo Mountain where the Grizzly Bear Spirit is and described as where they dance. While I don’t know what the spiritual practice is, I remember the first time the Ktunaxa made this public, I had shivers down my spine and I could sense how powerful that was for the Ktunaxa.
These spiritual places/landscapes or power places are so important to First Nations people as the power is there. Our ancestors have used those places since time immemorial or longer than the mind can remember. It is the continual use by our people that makes that location powerful. You can’t just go find a new location and expect it to have the same power. That is why First Nations have worked so hard to protect their power places.
So it is with the Ktunaxa. Within their territory there was a proposed development called Jumbo Glacier Ski Resort. From the start, the Ktunaxa were opposed to this development. For them, Qat’mak is the home to the Grizzly Bear spirit and could not be disturbed or it would drive the Grizzly Bear Spirit from Qat’mak. This would create a critical situation for the Ktunaxa regarding their well being.
Deciding to bring a power place/spiritual site to the public attention through a court case was not an easy decision for the Ktunaxa I am sure. But how else were they to protect what was important to them? Talking about spiritual practices in public normally wasn’t done in our communities but in this modern world First Nations have been forced to be more public about things that would have in the past remained untold. One example of this is with the Songhees people and their sacred cave on Spaet or Bear Mountain where another resort was built. During consultations, the Songhees people did not disclose about their sacred cave. They did not trust the consultation process to share something so sacred as they were aware of other confidential matters being made public by the province. They also culturally did not share that type of sacred information. As we know, the cave was destroyed. An archaeologist had been sent in to look at the cave and found no physical evidence of the cave being used and permission was given by province to destroy the cave. In spiritual caves or places, you walk softly, leave no trace of being there out of respect. Archaeology does not work in these instances as there is no physical evidence of use.
The Supreme Court of Canada said the Ktunaxa freedom to hold their beliefs or their freedom to manifest those beliefs is not infringed by allowing this development to go ahead.
The right to freedom of religion under s. 2(a) of the Charter of Rights has some very specific tests that must be met which do not in anyway correlate to how First Nations view and practice their religion/spirituality. They have to show that they believe in their practice of belief that the Ktunaxa do and they must prove the state conduct interferes in a manner that is non trivial with their ability to exercise that belief.
The court agrees that the first test is met but on the second test the court says the Ktunaxa must show that the Minister’s decision to approve the development interferes with either their freedom to believe in the Grizzly bear spirit or their freedom to manifest that belief.
The court continues on to say that the Ktunaxa sought to protect the presence of the Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it which is beyond s. 2(a) of the Constitution.
The court should have been able to add another element to the test that where the land and the right to religion/spirituality were so intrinsically mixed that protection of the right was fundamental to the rights of the Ktunaxa. Clearly the court was only intent on following old established principles without making space for indigenous laws that protect the right of spirituality. Courts have held that there must be space made for indigenous laws and the Supreme Court of Canada did not do this.
I was extremely saddened when I read this decision first thing Thursday morning. I had such hope for a good resolve and that the highest court in the land would be willing to protect our sacred sites from development that would totally abrogate that right. The Supreme Court of Canada has said in other cases such as Delgamuukw and Haida, that when there are established rights, there may be a requirement for consent. As the right to spirituality that is reliant on the land has not been an established right, the court did not even consider this as option.
This has always been one of my biggest concerns is whether you are before a court, an NEB or JRP panel, it is hard for indigenous peoples to make non First Nation judges/panels understand why something is so important and integral to their way of life. They don't understand and in some case do not care or feel it is not worth the effort to understand and do not find ways to accommodate what is being said.
It is not like sacred places have not been protected in BC. In the Maa-nulth treaty, the Uchuklesaht had the T’iitsk’in Paawats set aside which is several mountains as it was the home of the Thunderbird nest. That of course was a negotiated agreement as there is no protection for sacred sites in the Heritage Conservation Act of BC. There have been other agreements with the province to do the same kind of protection as with the Sts’ailes and Hupacasath.
The Ktunaxa have been very proactive people who have worked hard to build a working relationship with the province as evidenced by their agreements including a strategic engagement agreement. The importance of Qat’muk pushed them into court on their inability to get the province to stop the development. It is too bad that the province of Ktunaxa could not come to agreement with such a good relationship but then again it is not surprising as the Liberal government always chose capitalism over indigenous relations and rights.
So where to from here? It will be interesting to see what Ktunaxa’s next steps are. They have exhausted their domestic remedies and could go on to international forums. They could protect their land on the ground so stop development. They could work in other ways against the company and bring down their financial credibility in the markets or discourage people from going to the resort. Time will tell.
British Columbia must amend their legislation to protect sacred sites of indigenous people. There must be mechanisms created in which to do this through legislation and policy. There should not have to be fights on the land, in the media and in the courts to do something so fundamental for indigenous peoples. There has always been a willingness and a drive by indigenous people to protect their sacred sites but there has been no political willingness to do so on the part of past government. The province’s commitment to implement the Universal Declaration of Indigenous Rights and the Truth and Reconciliation requires this immediate action. We are in a new era with the NDP Government, let’s make the necessary changes so we do not destroy more sacred sites and the grizzly spirit can continue to dance.