It's worth remembering that, beneath their robes and beyond their brains, the nine judges of the Supreme Court are human beings just like the rest of us. In theory, they're insulated from public pressures, and view all matters before them solely through the lens of law. But it's no easier for them to issue a judgment that cuts against the tide of public opinion that it is for other Canadians to say things that, even when they are true, and perhaps especially when they are so, risk upsetting the neighbours. Nobody wants to be unpopular. Not even judges.
And that's just one of the reasons to praise the Supreme Court's ruling in Ktunaxa Nation v. British Columbia, a case that turns on the meaning of the constitutional guarantee of freedom of religion. The Ktunaxa First Nation argued that a proposed ski resort development in the interior of B.C. violated their religious freedom. The Court rejected that argument – respectfully, but correctly.
A ski resort in the area has been under consideration, review, Crown-Indigenous negotiation and/or litigation since the early 1990s. Until 2009, the Ktunaxa appeared to be on the path to reaching an agreement with the developer, under which compensation would be paid and changes made to reduce the project's environmental impact.
But in June of 2009, a Ktunaxa elder said he'd had a revelation that "any movement of earth and the construction of permanent structures would desecrate the area and destroy the valley's spiritual value." The Ktunaxa said that would drive away the so-called Grizzly Bear Spirit.
The development plan had earlier been altered to accommodate actual bears. But the Ktunaxa were now saying that the bear spirit, and their right to religious freedom, should be protected by blocking development.
Every religious belief – a deity who parts a sea, a man who dies and is reborn – seems strange to those who do not hold it. The Charter protects all beliefs, whether widespread or rare, ancient or novel. As the court explains in this case, religious freedom means the government cannot interfere with your religious views or practices. But the court said that doesn't extend to creating a property right or other rights over the land said to be connected to those religious beliefs.
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.