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Landmark Canadian Supreme Court Decision Holds Implications for Pipeline Development

Do not fear the Grizzly Bear Spirit, legal armor against religious opposition that was granted Thursday by the Supreme Court of Canada.

The divine wild king starred in a landmark ruling that sets a limit on power to obstruct development in the name of preserving aboriginal heritage, with implications for large energy projects.

The nine-judge panel unanimously rejected a native rights claim by the Ktunaxa, a tribal coalition that straddles the Canada-U.S. border in southern British Columbia (BC) and Alberta, and northern Montana, Idaho and Washington.

The Ktunaxa failed to convince the court that their freedom of religion, guaranteed by Canada's constitutional civil rights charter, would be destroyed by a plan to build the first North American year-round ski resort. The natives asserted that the proposed Jumbo Valley high-altitude hotel, lifts and trails would desecrate the southeastern BC mountain valley location, expel the Grizzly Bear Spirit, and tumble down a pillar of their culture.

The court ruled that religious freedom rights are the same for aboriginal communities as for other Canadians.

"The state's duty is not to protect the object of beliefs, such as Grizzly Bear Spirit," the court ruled. "Rather, the state's duty is to protect everyone's freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination. In short, the charter protects the freedom to worship, but does not protect the spiritual focal point of worship."

The case reaches beyond its immediate result of upholding provincial approval of the resort. The ruling sets a limit on special status claims liable to crop up in opposition to far larger energy projects, such as pipelines enabling development of the liquids-rich Montney Shale gas formation straddling northern BC and Alberta.

Canadian regulatory processes, obeying commitments by the federal and provincial governments to "reconciliation," give special attention to aboriginal "traditional knowledge" expressed by tribal elders or "knowledge keepers."

The National Energy Board (NEB) sets an example, with separate hearings held for native witnesses concerning projects. Aboriginal ceremonies are performed, as drums and head-dresses liven up the hearing rooms.

The native sessions follow tribal protocol of strict respect for community leaders as arbiters of native culture from herb harvesting to sacred sites and rites. Oral testimony does not have to be documented in writing.

Cross-examination is excluded, although written questions may be submitted after the talk sessions. Specialized consultants provide book-length "traditional knowledge studies" vetted by the tribal subjects and financed by intervener subsidies.

The ruling on the Grizzly Bear Spirit's limited earthly status did not change the evolving pattern of special consideration for native groups. But the high court, echoing previous rulings, emphasized that the commitment in Canada's constitution to respect aboriginal rights does not include a veto power over economic projects.

"The duty is to consult and, where warranted, accommodate," said the ruling. The judges observed that big changes were made to the ski resort project as a result of native recommendations, leading to acceptance by aboriginal communities not in the Ktunaxa coalition.

The constitution's native rights provision "guarantees a process, not a particular result," the ruling said. "The aboriginal group is called on to facilitate the process of consultation and accommodation by setting out its claims clearly and as early as possible. There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible. The ultimate obligation is that the Crown act honorably."

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