OTTAWA—The constitutional guarantee of aboriginal rights does not give Indigenous groups the right of a veto over land development in the name of religious freedom, says the country’s top court.

In a landmark decision on how courts should protect not only Indigenous religious beliefs, but all religious beliefs, the Supreme Court of Canada ruled Thursday that a British Columbia First Nation, the Ktunaxa people, could not block the development of a ski resort in the Jumbo Valley because they fear the Grizzly Bear Spirit they worship would depart.

The high court says the constitution’s religious freedom guarantee protects Canadians’ freedom to hold beliefs and to practice a faith, but does not require the state to protect what they believe in — the “object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit.”

The state’s duty is limited to protecting a person’s the ability to manifest religious beliefs “in worship and practice, or by teaching and dissemination,” wrote Chief Justice Beverley McLachlin and Justice Malcolm Rowe.

The high court said the provincial government’s decision to approve the ski resort and efforts over two decades to accommodate the religious beliefs and practices of the Ktunaxa people were reasonable, and entitled to deference by the courts.

Tom Oberti, the ski resort designer, planner and project manager, said in an interview the owners fully intend to kick start the development again — though it has been on hold since the province decided its environmental certificate had expired in 2015. Whether the owners challenge that in order to proceed with the planned 6,500-bed resort or go with a smaller 2,000-bed resort that doesn’t require the certificate is up in the air, he said. But Oberti said the project still “has tremendous value” because it is “so difficult in B.C. to gain approval for mountain resort destinations.”

The case was a precedent-setting clash of rights — the freedom of religious belief and aboriginal rights against land development in the broad public interest.

But the high court said the courts must tread carefully when deciding such cases, and not overreach.

The decision was 9-0, written mainly by McLachlin and Rowe. Justices Michael Moldaver and Suzanne Côté wrote separate reasons that concluded the development’s approval did infringe the religious freedom of the First Nations group. Yet they agreed the province had acted reasonably in its limitation on those rights.

The court didn’t break new ground on the duty of government to consult and accommodate aboriginal rights, however it set new limits on what the religious freedom guarantee in the Charter really means.

Ktunaxa Nation representatives were not immediately available for reaction, the council’s office said.

Assembly of First Nations national chief Perry Bellegarde said the decision is a blow to the Ktunaxa and shows a “lack of awareness and understanding from the Supreme Court” about their “world view.”

Bellegarde said now that the judicial branch has said “one thing” about the development, it’s up to the executive and the legislative branch “if they’re really true about nation-to-nation reconciliation” to truly listen to the Ktunaxa’s concerns.

New Democrat MP Wayne Stetski, whose constituency includes the Ktunaxa, told the Star in an interview “the majority of my constituents do not support” the project and neither does he.

“I don’t think we need another downhill ski area in my riding — we have 10 already if I remember the count — so from my perspective, this area is really important to the Ktunaxa; I’d like to see it stay in its natural state,” said Stetski.

The Ktunaxa (pronounced TeNaHa) Nation Council, representing people whose traditional territorial claim straddled the Canada-U.S. border, opposed a proposal by Jumbo Glacier Resorts.

The company wanted to build a year-round overnight ski resort in the Jumbo Valley, about 55 kilometres west of Invermere, with lifts to glacier runs that were previously reachable via helicopter — a $900 million project that would create up to 800 permanent direct jobs.

The company has pushed back against critics including those in a documentary that airs on Netflix. It says the area is not a pristine wilderness, but is centered on an old sawmill site. It said the closest First Nation, the Shuswap Indian Band, lives 55 kilometres from the project and was “consistently supportive” of the project, while the Ktunaxa Nation, located “approximately 188 kilometres away from the project, has been vociferously opposed.”

The company said the Ktunaxa were involved since the beginning in 1991 and “did not bring the notion of ‘spiritual values’ to the table until 2009 — when one elder recalled its existence.” The company says grizzly bear hunting is allowed in the project area, and since the project was first proposed, more than 70 grizzly bears have been killed in the area for “sport.” The company also claims Ktunaxa support the grizzly bear hunt and are involved in guide outfitting.

The high court said throughout two decades of negotiations and consultations, the province tried to accommodate the Indigenous concerns, but consultations “are a two-way street.”

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When the Ktunaxa finally asserted in 2009 what the court called a “novel claim” — that development must be barred altogether to protect the presence of the Grizzly Bear Spirit and the “subjective spiritual meaning they derive from it” — the court said the Ktunaxa got it wrong.

“This novel claim that would extend [the Charter’s religious freedom guarantee] beyond its scope and would put deeply held personal beliefs under judicial scrutiny,” the court wrote.

McLachlin and Rowe said the B.C. government had met its duty to consult and accommodate the First Nation’s concerns. The government reduced the resort development area by 60 per cent, had ordered on-site environmental monitors, allowed for continued use of the area for traditional practices and “measures designed to reduce the impact of the development on grizzly bears,” the court said. Moreover, the government rejected development on the lower Jumbo Creek area and a ski lift on the west side of the valley because of perceived greater visitation by grizzly bears in these areas.” It established a wildlife management area and offered to continue to protect the grizzly bear population through law and policies.

“There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible,” the ruling says.

“The ultimate obligation is that the Crown act honourably.”

The high court noted that the Shuswap, had been involved in the early negotiations and agreed their concerns were met, and the Ktunaxa’s later attempts to completely bar the development sought effectively to ask the courts “in the guise of judicial review of an administrative decision, to pronounce on the validity of their claim to a sacred site and associated spiritual practices.”

While Section 35 of the Canadian constitution guarantees potential rights “embedded in as-yet unproven Aboriginal claims,” those rights cannot be established via a court sitting in judicial review of an administrative decision,” McLachlin and Rowe wrote.

“Aboriginal rights must be proven by tested evidence.”

Justices Moldaver and Côté agreed the minister had balanced his statutory obligations with the aboriginal group’s claim, however they disagreed that the Ktunaxa’s religious freedom wasn’t infringed. The result, Moldaver wrote, is that the development of the ski resort would desecrate the area the Ktunaxa call Qat’muk and “cause Grizzly Bear Spirit to leave, thus severing the Ktunaxas connection to the land.”

“As a result the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. All songs, rituals, and ceremonies associated with Grizzly Bear Spirit would become meaningless,” he wrote.

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