The Canadian Case Ktunaxa: Using A Conflicts Approach to Show Indigenous Ontologies and Business Ethos in Law
Bibliographic record
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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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.010 |
| Meta-epidemiology (narrow) | 0.001 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.001 |
| Bibliometrics | 0.003 | 0.003 |
| Science and technology studies | 0.027 | 0.031 |
| Scholarly communication | 0.011 | 0.007 |
| Open science | 0.003 | 0.006 |
| Research integrity | 0.005 | 0.007 |
| Insufficient payload (model declined to judge) | 0.006 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".