First Nations' case based on religious freedom and land sacred they consider sacred
By Deborah Gyapong
Caption: Constitutional lawyer Albertos Polizogopoulos.
Two Christian organizations intervened Dec. 1 before the Supreme Court of Canada behalf of an historic Indigenous religious freedom claim.
The Evangelical Fellowship of Canada (EFC) and the Christian Legal Fellowship (CLF) jointly intervened on behalf of the Ktunaxa First Nation who oppose the development of a ski resort on land they consider sacred. The Ktunaxa Nation is in the Kootenay region of British Columbia.
"Usually a case regarding sacred land would be dealt with under the Charter dealing with Aboriginal rights, section 35, but this is the first time there's been a claim under Section 2a, under freedom of religions and under Section 35," said Constitutional lawyer Albertos Polizogopoulos, who represented the EFC.
"We didn't take a position on the outcome of the appeal on whether the resort should be built or not," he said. "We wanted to address how religious freedom claims ought to be handled."
"Freedom of religion doesn't only protect private religious beliefs and practices, even if those practices have an impact on third parties," he said.
The second argument the groups made involved a "vehicle" that could be land or a church that is required for someone to exercise their religious freedom, Polizogopoulis said. "If that vehicle is required for someone to exercise their religious freedom, a decision that restricts that vehicle violates the religious freedom of individuals."
"If the City of Ottawa says you can't build any churches, it might not be meant to target anyone individually, but it affects our ability to exercise our religious freedom," he said.
The Ktunaxa say the land in question is known to them as Qat'muk, the home of the "grizzly bear spirit," and is of "vital importance" to the First Nations' spiritual beliefs and practices, according to a News release from the Ktunaxa Nation Council.
"Qat'muk has existed long before any ski resort proposal and long before Canada was a country," said Kathryn Teneese, Ktunaxa Nation Council Chair. "As a Nation, we have spent too much money fighting in the court system to prove what we have always known. Qat'muk is vital to Ktunaxa as well as local wildlife populations and biodiversity and must be protected."
"We believe that both the Charter of Rights and Freedoms and the Constitution Act provide us with the right to freely practice our traditions," said Teneese. "It is unfortunate that the Supreme Court of British Columbia and the British Columbia Court of Appeal failed to recognize this, but we are confident the Supreme Court of Canada will uphold the rights of all Canadians to practice their religions and traditions free from interference and the threat of destruction of sacred places."
The EFC and CLF factum points out BC Court of Appeal had concluded the claim was outside the Charter's section 2a protections "on the basis that it negatively impacted third party interests."
The groups argue the third party interests are not Charter rights and argued the lower courts circumvented a proper analysis of the religious freedom claims and a proportional balancing of competing rights. It warned of a precedent that would "suggest impacts on third party interests---even interests that are not actually Charter rights---will automatically override an entrenched constitutional right."
"Religious freedom protects more than just private human self-expression," the factum said. "Religious freedom has an inescapable public dimension that courts, including this court, have recognized and must continue to recognize and protect."
"The court was certainly aware of the religious freedom issues," said Polizogopoulos. "I don't know how open they were to them, but they certainly understood them."
The Court reserved judgment, and a decision would normally be expected in six to 12 months.
Catholic Civil Rights League president Phil Horgan said the case is important because it is the first time the Supreme Court of Canada is dealing with a religious freedom issue regarding Indigenous spirituality.
"Catholic missionaries have had a great personal and historical engagement," he said.
Though the League has often joined the EFC and the CLF in previous court cases it did not join in this case. "We don't get into every religious case that comes up for review by the Supreme Court," Horgan said. "That's due to limitations of our mandate and our resources."
The case was "a bit outside our scope" in that "it was advancing particular claims that fall outside the purview of the Magisterial teachings of the Church," he said. "But it should be understood that we continue to advocate for a robust understanding of Section 2a of the Charter."