Grizzlies in the Mist

—November 16, 2017—

First Nations lost an important lawsuit before the Supreme Court of Canada recently on account that their argument was found wanting: freedom of religion based upon traditional beliefs.

Readers who have followed my tracking of the native legal winning streak will be familiar with my preferred wording – ‘Land Rights’ – being the catch all phrase whereby natives typically win in the resources sector; since they have constitutionally-protected land rights that the rest of us don’t have. My message to government and to industry is always the same: realize that natives are resource gatekeepers and work them into the project as the key local players that they are.

In this instance, the Ktunaxa Nation was out to stop a year-round ski-resort proposed for the remote Jumbo Glacier, near Invermere B.C., in the beautiful Purcell Mountains. Planning for this project had been ongoing for two decades: and one of the few breaks it ever got, was when the (closer) Shuswap Nation entered in into a collaborative commercial agreement to support it.

That was the moment when the Ktuxana turned-away, citing (very late in the game) that the glacier was a site of sacred significance according to their traditional beliefs. An Elder had a dream (yet never shared it for a further five years) to the effect that Jumbo Glacier was the afterlife destination for grizzly bears, where their spirits would be free to frolic, which was important to the Ktunaxa given the totemic-status of the grizzly bear in their world-view.

Soon eco-activists climbed aboard, as did civil rights organizations, and a very sophisticated public relations machine rolled-out to stop the resort in the lead-up to the final court ruling. The problem being, by then, the Ktunaxa had publicly adopted a no compromise position in full-on opposition to the project. Here’s how the first (lower court) judge reacted to that position:

[230] Further, when the Ktuxana did say that no accommodation of the Proposed Resort is possible, it seems that their position was based on the epiphanial reflection of one elder which arose in 2004 but was only communicated to third parties in 2009. The specific belief was not widely held among the Ktuxana. (B.C. Supreme Court 2014)

Undaunted, the Ktunaxa stuck with the freedom of religion argument (as opposed to advancing a land-rights argument) likely because they didn’t use the area (nobody did, not even grizzlies). That’s how remote the glacier is; and why the proponent saw it as a year-round marketing plus.

Then, before the Supreme Court of Canada, lawyers for the native-side invoked the analogy (right-off-the-bat) that the proposed resort was the equivalent of dropping ‘Disney Land on the Temple Mount’. That remark prompted the judges to wonder aloud whether ‘this is about a veto’ and lamented the apparent ‘no middle ground’. (excerpts legal arguments Dec 01/16 author’s notes live webcast) Thus, when the final ruling issued a year later, the Supreme Court didn’t mince words over the brinkmanship that it saw in play throughout the protracted period:

[114]  In point of fact, there was no evidence before the Minister of “specific spiritual practices”. It is true, of course, that the Minister did not offer the ultimate accommodation demanded by the Ktunaxa – complete rejection of the ski resort project. It does not follow, however, that the Crown failed to meet its obligation to consult and accommodate. The s. 35 right to consultation and accommodation is a right to a process, not a right to a particular outcome … While the goal of the process is reconciliation of the Aboriginal and state interest, in some cases this may not be possible. The process is one of “give and take”, and outcomes are not guaranteed. [Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54]

It’s one thing to argue that a site is sacred because one’s traditional beliefs and practices are physically carried out there and can be demonstrated and weighed in evidence; but it’s quite another to say that it’s sacred because of spirit bears, frolicking there. based on dream-theory. The former denotes objective criteria, while the latter is totally subjective. That’s why the ‘land rights’ approach has been successful for native litigators; they put facts and figures in evidence.

But this case offered a polarizing argument that had no evidentiary basis whatsoever. To the point that even the Globe & Mail editors weighed-in with: “The Supreme Court gets religion”:

Government can’t get into deciding where a non-material bear lives. And that means going ahead with a development on traditional Indigenous territory comes down to adequate consultation with the affected Indigenous group, under Section 35 of the Constitution – as it should. (excerpt Globe & Mail editorial Nov 6/17)

As a strategist, one wonders how this case ever got so far? A loss like this one undermines the ‘land rights’ legitimacy of the rise of native empowerment and the overall heft of their legal winning streak. It’s still the biggest win cycle in Canadian legal history: based upon ‘land rights’.