Canada Nov. 12, 2017

Christian groups see positives despite religious freedom loss

By Deborah Gyapong

Derek Ross of the Christian Legal Fellowship and Bruce Clemenger, president of the Evangelical Fellowship of Canada, at the Supreme Court of Canada Nov. 2. Despite losing in the Ktunaxa Nation case, both see some positive elements for freedom of religion from the case. (Deborah Gyapong / CCN)

OTTAWA (CCN)—B.C.'s Ktunaxa Nation may have lost the first religious freedom case involving Indigenous spirituality Nov. 2, but Christian interveners still see positive signs in the decision.

The case involved the development of a ski resort in an area called Qat’muk deemed sacred to the Ktunaxa “because it is home to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology,” said the 7-2 decision of the Supreme Court of Canada.

The majority held B.C. Forestry, Lands and Natural Resource Operations Minister’s decision to allow the ski resort to go ahead did not violate religious freedom rights “because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the Minister’s decision.”

The Ktunaxa “are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it,” the judges wrote. “Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it.”

The judges called this claim “novel” and added it would “put deeply held beliefs under judicial scrutiny.”

The court held the Charter’s religious freedom protections do not “protect the object of beliefs or the spiritual focal point of worship.”

However, a minority opinion by Justice Michael Moldaver held that while the duty to consult with the Ktunaxa Nation was met, its religious freedom would be impaired. “The development of the ski resort would desecrate Qat’muk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the land.”

While a blow to the Ktunaxa Nation’s religious beliefs, the Evangelical Fellowship of Canada (EFC) and the Christian Legal Fellowship(CLF), two groups that intervened jointly in the case, see positive signs in the decision and that of the minority.

“The majority’s reasons reaffirm that the Charter protects both the public and communal aspects of religion – not just the individual and private – and that courts must not entangle themselves in religious matters by assessing the content and merits of personal beliefs,” said Derek Ross, executive director and legal counsel for the Christian Legal Fellowship in a joint news release with the EFC. “The decision also clarifies that the Charter protects both 'old' and 'new' religious beliefs and practices; this allows for the possibility that one's sincere religious beliefs may develop and mature over time.”

“The minority’s reasons provide a salient reminder that it is not just the act of religious exercise that attracts Charter protection, but the religious or spiritual essence of that act,” Ross said.

“The Charter ought to be interpreted in a way that reflects the unique aspects of diverse religious traditions, beliefs, and practices – particularly those of minority communities or those not widely understood.”

Bruce Clemenger, president of the Evangelical Fellowship of Canada, said “The Ktuxana decision provides an important clarification of the scope of the Charter’s guarantee of religious freedom and confirms that government must carefully consider claims that their actions may violate the religious freedoms of individuals and communities.”

He added, “While the Court was clear the protection does not extend to the object of one’s faith, the court is divided on whether this guaranteed freedom includes things that are essential to religious expression, such as land in this case.”

The CLF and the EFC’s intervention focused on two main arguments, said the release: “First, they emphasized why freedom of religion must not be automatically overridden because it may impact third-party interests – especially when those interests are not themselves Charter rights.”

“There was concern that the lower courts’ decisions might be interpreted as suggesting that religious freedom exists only to the extent it has no impact on others,” said the release. “However, the Supreme Court did not adopt this reasoning.”

Second, the intervention “explained how state interference with the means, instruments or 'vehicles' through which religious individuals or religious communities practise and manifest their faith can be equivalent to direct interference with religious practice itself.”

“This notion was reflected in the minority’s observation that ‘where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom,’” the release said.