A recent ruling on religious freedom shows the Supreme Court is unable to recognize its own colonial and culturally located position under the Charter.
Earlier this month, the Supreme Court of Canada (SCC) issued its ruling on the first case of Indigenous religious freedom under the modern constitutional order in Ktunaxa Nation v. British Columbia. The case focused on the development of a year-round ski resort (Jumbo Glacier) on Qat’muk, home of Kⱡawⱡa Tukⱡuⱡakʔis, the Grizzly Bear Spirit. The Ktunaxa Nation said that any disturbance of the land would drive the Grizzly Bear Spirit away, irrevocably impairing their religion, and significantly impacting the vitality and well-being of the community.
Following the 2012 approval of a master development plan for the resort by the provincial minister of forests, lands and natural resources, the Ktunaxa Nation brought the case before the BC Supreme Court (BCSC) and then the BC Court of Appeal (BCCA). The recent SCC decision exposed many of the most troubling prejudices that were bubbling beneath the surface in both the BCSC decision and BCCA decision. Ultimately, the SCC ruling affirms the superficiality of religious freedom in Canada, the impossibility of Indigenous religious freedom in Canada, and the inability of the court to recognize its own colonial and culturally located position — a position reaffirmed under the Charter.
The majority in the Ktunaxa Nation decision succinctly and crudely captured the true spirit of s. 2(a) under the Charter (freedom of conscience and religion). “Religious freedom,” as expressed by the SCC, lacks any measure of depth or recognition of the complexity of lived religious experience and it remains fixed within culturally identifiable limitations that make freedom possible for some and not for others. In the ruling of the Court, Chief Justice Beverley McLachlin clarified that freedom of religion is restricted to freedom to hold and manifest beliefs (2017 SCC 54, par. 63).
Belief is, of course, one facet of religion, but not its entirety. Scholars of religion such as Jonathan Z. Smith and Donald S. Lopez (see Critical Terms for Religious Studies) have pointed to the modern Christian origins of the concept of religion and the pivotal shift that took place in the Christian world in the sixteenth century, which saw the concept move from the privileging of ritual to the privileging of internalized belief. It is this popular perception of religion that lies at the foundation of the legal discourse of religion in Canada. As Benjamin Berger reminds us in Law’s Religion: Religious Difference and the Claims of Constitutionalism, law is the product of culture and so too is its construction of religion.
Contemporary scholars of law and religion, notably Elizabeth Shakman Hurd among other contributors to Politics of Religious Freedom, have argued that belief is often prioritized at the expense of embodied and community aspects of religion. As an example, notice how “belief” does not adequately capture the description of religion offered in Article 12.1 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), cited by the Ktunaxa Nation in the Qat’muk Declaration:
Indigenous Peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
Privileging and focusing on belief is therefore a culturally locatable act because the way in which religion is popularly understood (even by the courts) is identifiably, if only residually, Christian in nature. Legally protecting belief, rather than religion, does not adequately address the depth and complexity of religious experience. Wrestling with such matters would require the Court to engage in a self-reflective and complex investigation of the legal construction of a particular type of religion, which the SCC was unwilling to do.
Notably, the Ktunaxa Nation’s Qat’muk Declaration makes no mention of the term “belief.” The Ktunaxa were conscious to the potential for misunderstanding their religion, explaining in the Qat’muk Declaration that “Ktunaxa language does not translate well into other languages and consequently our spiritual relationship with Qat’muk may not be fully understood by others.” They go on to explain, “what we do to the earth, we do to ourselves” and “our people care for the land, the land cares for our people.” This is not worship and cannot so easily be relegated simply as belief or even practice.
For his part, Justice Michael Moldaver in his partially concurring decision was critical of what he described as the “empty” and “hollow” reading of religious freedom by the majority. Justice Moldaver asserted that “courts must be alive to the unique characteristics of each religion.” (par. 128). Justice Moldaver offered a corrective to the majority decision, clarifying that the Ktunaxa were not seeking protection for worship of the Grizzly Bear Spirit, but of the manifestation of belief through practice. While he drew important attention to the complexity and depth of religious experience, he too ultimately privileged belief, locating his partially concurring opinion in the existing cultural construction of religious freedom.
But the most glaring element of the SCC decision in Ktunaxa Nation v. British Columbia, in my view, is that Indigenous Peoples are not recognized as Indigenous Peoples under the Charter — despite the fact that they possess Aboriginal rights under s. 35 of the Constitution. The chief justice writes, “[W]ith respect to the s. 2(a) [Charter] claim, the Ktunaxa stand in the same position as non-Aboriginal litigants” (par. 58). This is not surprising as the Kelly Lake Cree Nation and Saulteau First Nation were offered a similar reminder in their s. 2(a) claim before the BCSC in 1998.
Under s.35 of the Constitution, the courts have recognized and affirmed Indigenous cultural rights and, more specifically, unique relationships between Creator, community, and the land. “Aboriginal rights” as cited in the Constitution, while fraught with problems in interpretation and application, seek to reconcile the pre-existence of Indigenous Peoples with Crown sovereignty.
In contrast, under the Charter, the courts have set aside Indigenous identities, the legacy of colonialism, and the specific contours of Indigenous religions in favour of legal universalism, where the law stands apart from culture, and treats everyone the same. Justice Moldaver, like the BCCA before him, referred to Qat’muk as public land to which all citizens have a right, rather than contested (or occupied) space in a legal framework that ideally seeks to reconcile Crown sovereignty with the continued existence of Indigenous Peoples on those territories. The relegation of Indigenous Peoples to being just another interest group helped Justice Moldaver to justify the provincial minister’s decision to approve the ski resort based on fiduciary responsibilities. Justice Moldaver did not go as far as the BCCA decision, in which Justice Richard Goepel accused the Ktunaxa Nation of seeking to impose their religion on the public, but the underlying denial of Indigenous identity and the history of colonialism remained.
If we accept the fact that the law is culturally located and that legal culture is rooted within a Euro-Canadian — possibly residually Christian — framework, then the Charter is a potential tool of assimilation.
Some early commentators suggested that the SCC should have considered UNDRIP, which Canada has endorsed, but that would assume that Indigenous Peoples are recognized as Indigenous Peoples under the Charter and they are clearly not. Neither article 12 nor article 25 of UNDRIP, relevant to the subject of Indigenous religious freedom, makes use of the word belief, as the Court did. In fact, the word belief cannot be found anywhere in UNDRIP; instead there are references to the “spiritual relationship with their traditionally owned or otherwise occupied and used lands” and “spiritual and religious traditions, customs and ceremonies.” Officially 22 years in the making, UNDRIP is a non-binding declaration constructed by representatives of Indigenous Peoples and of non-Indigenous governments from around the world. Of course, the UN Declaration does not actually matter in the context of the Charter. After all, for the SCC to recognize UNDRIP, it would have to recognize Indigenous Peoples as Indigenous Peoples under the Charter, and this is not the case.
The Supreme Court has certainly come a long way since its last ruling on Indigenous religious freedom in Jack and Charlie v. The Queen (a pre-Charter case that was ruled on by the SCC in 1985), wherein the Court explicitly decided what was and what was not Coast Salish religion. And yet, what may constitute an insurmountable bias remains. If we accept that the law is culturally located and that legal culture is rooted within a Euro-Canadian — and possibly residually Christian — framework, then the Charter is a potential tool of assimilation. Protection under s. 2(a) requires claimants to frame their religion in terms that are recognizable to the legal culture of Canada without reference to the colonial foundations of that very legal system or to the broader colonial context of Canada. This SCC decision indicates that Indigenous religious freedom, under s. 2(a), is currently an impossibility.
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