This isn't religion, it's madness

Next Tuesday I am engaging in a debate with former justice minister Irwin Cotler, a cordial and respected acquaintance of many years, in Ottawa on the issue of whether the Supreme Court of Canada is usurping the rights of Parliament. I am speaking for that motion and have been asked by the sponsor of the debate, the Macdonald-Laurier Institute, to write about it before the debate, which will be at the National War Museum. It would be a tactical error to put my case out here, so I will focus on a legal argument that the Supreme Court has agreed to hear, on appeal from the British Columbia Court of Appeal.

This is the case of Ktunaxa Nation vs. British Columbia. The Ktunaxa Nation, comprised for these purposes of four bands in British Columbia, has perhaps a total population of 1,000. This fact is reported neutrally — rights do not belong only to the numerous. I am a member of the largest ethnic and religious minorities (Anglo-Saxon and Roman Catholic). Almost 25 per cent of Canadians are of mixed ethnic ancestry and about the same percentage declares that they have no religion. I have often publicly deplored the failure of much of Canada's policy toward native people, the failure to live up to treaty obligations, and the need to do better, with full allowance for the great complexity of the problems. I qualify as a religious communicant, and entirely respect the religious views of any sane person, and equally respect the right to abstain entirely from or oppose any religious belief.

The basic facts in the Ktunaxa case, as found in the judgment (which I've read), are that a commercial group (Glacier Resorts Ltd.) set out in 1991 to build a year-round ski resort on Crown land in south-eastern B.C., and four Ktunaxa bands have attacked the project, initially for general reasons of insufficient consultation. There was always a religious aspect to the Ktunaxa objection, as well as concerns about environment and material compensation. A vast environmental review, lasting almost a decade, was conducted, which approved the Glacier Plan in 2004.

Glacier produced a 13-volume master plan in 2007. When the draft of this plan was submitted to the B.C. Ministry of Lands, Forests, and Natural Resource Operations, the Ktunaxa objected that the First Nations part of the plan was unacceptable. In 2006, the Ktunaxa National Council entered into discussions with the provincial government toward a consultation agreement. It was alleged that the area involved had cultural significance and sacred value though these factors remained unassessed by the Ktunaxa spokespeople.

I am a law graduate but have never practised, have expressed some public disagreement with the chief justice, and consider the whole legal system to be tainted by cartelism, and swaddled in pious claptrap about the sanctity of the rule of law. Yet I was impressed by the thoroughness and rigour of the appellate verdict in British Columbia, delivered by Justice Richard Goepel, which is now coming before the Supreme Court.

Between 2006 and 2009, an accommodation and benefits agreement was pursued between the Ktunaxa and the province. In 2007, the draft master plan was approved by the government and after further very extensive discussion, the B.C. government approved the Master Development Agreement in 2012. The Ktunaxa leaders first cited the fundamental religious intolerability of the project in September 2008, but the government determined that a full and reasonable consultation process had occurred and that most objections were "interest-based," and that the project could proceed.

In the course of these first 21 years of incubation of the project, it had been reduced in acreage by 60 per cent, all residential and parking areas were put in the logged area around a former sawmill, residential capacity was reduced to less than ten per cent of that of Whistler, ski lifts and runs were removed from the area most populated by grizzly bears (whose particular importance I will get to soon), preferential hiring, and education and training opportunities were promised for the natives, as well as interpretive and permanently staffed environmental monitoring centres. Areas would be designated for traditional activities, and a wildlife management area, with Ktunaxa involvement, would be established over the whole area.

In September, 2009, the Ktunaxa leasers declared their absolute opposition to any permanent project such as was proposed, because of the "sacred significance" of the entire area. The "sacred value" of the area only came to the fore in 2009, when it became "a life and death matter." The catalyst was Ktunaxa elder Chris Luke, who claims to have had a revelatory experience in 2004, telling him he had to speak up for the "spirit of the Grizzly Bear." Luke did not share this Damascene bolt of divine insight with anyone for five years.

It then emerged that, in the words of Justice Goepel for the B.C. Court of Appeal, with which his two fellow justices concurred, "the construction of permanent structures would desecrate the area and destroy its spiritual value." The Ktunaxa authorities said: the "Grizzly Bear Spirit will leave that area, the Ktunaxa will no longer have access to it or the gifts it provides to them ... and religious rituals involving Grizzly Bear Spirit will become meaningless." The fact that religious observances in reference to the Grizzly Bear Spirit almost never occurred in the contested area was claimed to be irrelevant — discommoding the bears in the slightest would banish the revered spirit, and render worshipful acts, wherever conducted, futile. The authority for this theological insight was Luke's long-withheld "epiphanial reflection."

The legal issues were whether building the project violated the Charter of Rights and Freedoms under Section 2(a), which guarantees religious freedom, and whether approving the project was a violation by the B.C. government of the duty "to consult and accommodate asserted Aboriginal rights under the Constitution Act (of) 1982." The highest court in British Columbia, after 24 years of public debate and consultation, thought not, in a meticulously fair and admirably reasoned argument.

Nothing in any of this, at this point, is an usurpation. But I have a ghastly, sinking feeling that the high court is reaching for this case to make another secular intrusion in what is ostensibly an issue of theology, and to make another faddish foray into the terribly difficult and largely tragic public policy area of the rights and entitlements of aboriginal peoples. This is, after all, and as it appears, almost a Monty Python parody: someone reveals after four years that the Almighty had indicated to him that the rites of a thousand people would be desecrated if a recreational project, that has been endlessly debated for 24 years, will give the complainants employment and is on formerly commercially exploited territory, is allowed to proceed. This is because it may be within earshot of some grizzly bears whose collective sacred spirit will be affronted.

This isn't messianism; it isn't even reverence, or spirituality. It is bunk. Are we all mad?

The Supreme Court of Canada, like everyone, deserves the benefit of any doubt.

*****

It is embarrassing that for the first time in my career, I must in consecutive weeks apologize for an error in a column. I left out last week my note that Zimbabwe was not now in the Commonwealth, though its standards of governance are not without parallel in the Commonwealth; and two readers, including an old comrade from The Daily Telegraph in London, thought I was disrespectful of the Queen. I am an outspoken admirer of the Queen, and do not apologize for anything on this subject except that I allowed such a doubt to enter the mind of a distinguished reader and friend.