National Column: Top court takes pause on Indigenous advances

by Thomas Walkom

The Supreme Court has long been in the vanguard of expanding Indigenous rights. But in a landmark ruling, it has deftly applied the brakes.

The ruling, released Thursday, centres on an attempt by the Ktunaxa First Nation of British Columbia to stop a ski resort from being erected on sacred land.

But it is really about the right of Indigenous peoples to override economic development decisions made by elected federal and provincial governments.

The top court has already ruled that Indigenous nations do not have an absolute veto over such decisions, a point it reinforced Thursday.

But in denying the Ktunaxa claim, it also, in effect, ruled that Indigenous people cannot use the Constitution’s freedom-of-religion clause as a back door to achieve the same end.

The dispute over the proposed Jumbo Glacier Resort has been going on, in one form or another, since 1991. By 2009, its proponents had obtained the approval of the nearby Shuswap First Nation. But that same year, the Ktunaxa weighed in with a new argument, saying that the project would drive away the Grizzly Bear Spirit they worship.

The court noted that this argument came late in the game because of the Ktunaxa’s deeply held reluctance to discuss their religious beliefs with outsiders.

But the justices didn’t buy it anyway. Seven of the nine, including Chief Justice Beverley McLachlin, ruled that while the Constitution’s freedom-of-religion clause allows people to worship in any way they wish, it does not require the state to protect their objects of adoration – in this case, the Grizzly Bear Spirit.

The two remaining justices ruled that the ski resort plan did infringe upon the Ktunaxa’s freedom to worship but that, when weighed against the B.C. government’s statutory obligation to encourage economic development, this infringement was justified.

All nine ruled that the B.C. government had met its constitutional obligation to consult the relevant First Nations. But consultation, they noted, does not require agreement.

Indigenous leaders have treated the Ktunaxa ruling as a setback for aboriginal rights. In a sense, they are correct.

The top court has long been in the forefront of expanding these rights. It has tended to interpret the relevant portions of the Constitution in the broadest manner possible and has been far ahead of elected governments in doing so.

Various rulings have fleshed out treaty rights, expanded the definition of who gets to be considered aboriginal and confirmed that Indigenous people are exempt from fish and game laws.

But lately, the court has become more cautious. In a decision this July, it dismissed efforts by a London-area First Nation to kill a proposed pipeline.

In that case, the court ruled that the federal government and its agencies had made every reasonable effort to consult the Chippewas of the Thames and had taken their views into account before deciding to let the pipeline go ahead.

That the decision contradicted the wishes of the First Nation, it said, was immaterial.

Now, with last week’s ruling, the court had made it more difficult (although not impossible) for Indigenous appellants to try the freedom-of-religion gambit.

Canadians like to maintain the useful fiction that their Supreme Court judges ignore politics. While they are not as blatantly partisan as their U.S. counterparts, they are not naive. They know that their decisions, particularly the constitutional ones, have great political impact. They also know that while in some instances they can go beyond where elected governments dare to go, they can’t get too far ahead.

So consider Thursday’s ruling as part of a balancing act. In the past, the top court has made sweeping rulings to advance the cause of Indigenous peoples. Now they are taking a breather.

As for Jumbo Glacier Resort, it’s probably best not to book a room just yet. Construction has not yet begun and, in an attempt to win back its cancelled environmental assessment certificate, the company is involved in an unrelated court case with the B.C. government.

Thomas Walkom appears Monday, Wednesday and Friday.
Copyright 2017-Torstar Syndication Services

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