The Canadian Case Ktunaxa: Using A Conflicts Approach to Show Indigenous Ontologies and Business Ethos in Law

Brachotte, Sandrine
(2018) uOttawa 2018 GLSEDD (Graduate Students in Law Association) ‘Law: From Crisis to Opportunity’ — Location: University of Ottawa (10.May.2018)

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  • Brachotte, Sandrineorcid-logoUCLouvain
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Abstract
In this paper, I examine how law could accommodate “unsolvable cases”. By the latter, I mean judicial decisions where legal reasoning seems disconnected from the true issue at hand. While the practical consequences of the decision may seem fair and reasonable, the process to get there “does not feel right.” To illustrate this phenomenon, I study the recent Ktunaxa case. This case concerns the development of a ski resort in the Jumbo valley, by a private company having contracted with the government of British Columbia. The Ktunaxa Nation, an Indigenous People, argued that this undertaking would infringe upon its freedom of religion. It would make the Grizzly Bear Spirit leave the site of Qat’muk that covers the valley. As a result, the Ktunaxa would no longer receive spiritual guidance. The Supreme Court of Canada dismissed that claim, on the ground that freedom of religion did not include the protection of the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. It only protects the Ktunaxa’s freedom to believe in Grizzly Bear Spirit or to pursue practices related to it, according to the well-established case-law of the Court on Article 2(a) of the 1982 Charter of Rights and Freedom. I examine whether private international law (or conflicts of law) reasonings might enable us to see the situation in a better light. The conflicts approach, I argue, unveils what is hidden by classic legal reasoning. Therefore, it can contribute to open new doors for thinking (and maybe feeling). In Ktunaxa, the paper shows, the conflicts analysis does three things. this reasoning had done three things. First, it acknowledges the legality of Ktunaxa law, which makes the decision more satisfactory in terms of giving the parties the feeling that they have been heard. Second, it recognises the legal power of the business concern. Finally, it acknowledges the inability of Canadian law, as it stands, to cease the Ktunaxa spiritual claim at stake. Not because of Canadian law mere interpretation. But because, more dramatically, of the core notions on which that legal provisions rest, mainly that of property.
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Brachotte, S. (2018). The Canadian Case Ktunaxa: Using A Conflicts Approach to Show Indigenous Ontologies and Business Ethos in Law. uOttawa 2018 GLSEDD (Graduate Students in Law Association) ‘Law: From Crisis to Opportunity’, University of Ottawa. https://hdl.handle.net/2078.5/238881