CASE BRIEF:
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54
On November 2, 2017, the Supreme Court of Canada dismissed the appeal of the Ktunaxa Nation’s claim that the province’s decision to approve the Jumbo Glacier Resort infringed their freedom of religion under the Charter of Rights and Freedoms and that the consultation and accommodation process that was followed was unreasonable.
Background
Ktunaxa Nation sought judicial review of the master development agreement for the ski resort signed by the proponent and the responsible Minister. The Nation claimed that the proposed resort lies at the heart of a sacred area of paramount significance called Qat’muk, which is the Grizzly Bear’s spiritual home. Permanent human occupation of Qat’muk would cause the Grizzly Bear Spirit to leave and, thereby, profoundly harm the identity and culture of the Ktunaxa. The Ktunaxa argued that the Minister failed to consult and accommodate their Aboriginal right to exercise a spiritual practice that required the protection of a sacred site. In addition, the Ktunaxa argued that the approval of the MDA violated their freedom of religion. Thus, the judicial review required consideration of both s. 35(1) of the Constitution Act, 1982 and s. 2(a) of the Canadian Charter of Rights and Freedoms (the “Charter”). This was the first opportunity for the Supreme Court of Canada to grapple with Indigenous religious beliefs in the context of a Charter claim.
The court reviewed an extensive record of consultation and accommodation efforts, dating from 1991 to 2012. While the Ktunaxa were opposed to the project from the start, the court found that the consultation record up to late 2009 did not show Ktunaxa asserting that the project was irreconcilable with their sacred values. However, at a meeting in late 2009 with the Minister, Ktunaxa took the position that no accommodation was possible because the construction of permanent structures would desecrate the area, destroy its spiritual value and cause the Grizzly Bear Spirit to leave Qat’muk. The lateness with which the Ktunaxa raised their concerns about adverse effects to their spirituality was a key factor when the court considered whether their freedom of religion had been infringed and whether the Minister’s conclusion that consultation had been adequate was reasonable.
The SCC Decision
The Court dismissed Ktunaxa’s appeal. A majority of the court held that the Ktunaxa claim did not fall within the scope of section 2(a) of the Charter. Justices Moldaver and Côté were of the view that s. 2(a) was engaged and the decision infringed the Ktunaxa religious right, but that the Minister’s decision reflected a proportionate balancing, approving the resort with significant alterations, while limiting the Ktunaxa’s right as little as reasonably possible. The court unanimously found that the consultation and accommodation were reasonable in the circumstances.
With respect to the Ktunaxa’s arguments regarding freedom of religion and section 2(a) of the Charter, the court held that as their Charter right had not been infringed, section 2(a) was not engaged. To establish an infringement of the right, the claimant must demonstrate: (1) that he sincerely believes in a practice or belief that has a nexus with religion, and (2) that the state conduct interferes, in a manner that is non-trivial or not insubstantial, with his ability to act in accordance with that practice or belief. The majority held that the second part of the test was not met. The court’s view was that the Ktunaxa sought through section 2(a) to protect the presence of the Grizzly Bear Spirit in Qat’muk. The court stated this is a novel claim that they were not prepared to recognize.
Interestingly, that is not the way Ktunaxa characterized its claim. The right is “to exercise spiritual practices which rely on a sacred site and require its protection.” The Minority accepted this characterization of the right and warned that the majority’s approach risks foreclosing the protections of s. 2(a) of the Charter to substantial elements of Indigenous religious traditions.
With regard to the adequacy of the consultation and accommodation, the court does not break any new ground. When reviewing the reasonableness of the consultation process conducted by the Minister, the court held that significant changes were made to the specifications of the proposed resort to accommodate Ktunaxa’s concerns and to some extent address the Ktunaxa’s spiritual connection to the land. In addition, significant financial compensation and land protection measures were offered and rejected. The court did not accept that the Minister had acted with cavalier disregard for the Ktunaxa’s spiritual or religious concerns and held that the Minister’s accommodations fell within a range of reasonable responses which upheld the Honour of the Crown.
Why this Case Matters
The majority of the court was not prepared to accept that s. 2(a) of the Charter protects a right to a sacred site. While the court held that it is undisputed that the Ktunaxa sincerely believe in the Grizzly Bear Spirit and that permanent development in Qat’muk would drive this spirit away, the court held that their freedom of religion was not engaged and characterized the Ktunaxa position as seeking a veto over development.
This is a worrisome development. There is no dispute that the destruction of a church, synagogue or a mosque would constitute an unjustified infringement of the freedom of religion. The desecration of a sacred mountain should attract similar considerations, but according to the Supreme Court of Canada the freedom of religion is not engaged.
Fortunately, there remains judicial support for the view that the protection of spiritual and cultural sites is part of the Indigenous laws and traditions which are Aboriginal rights protected under section 35 of the Constitution Act. The Courts have recognized that the exercise of religious rights and customs have a territorial aspect to them. Such rights will attract a duty of consultation when the Crown contemplates an action that will adversely affect or infringe upon these Aboriginal and Treaty rights.
John Gailus and Christopher Devlin represented West Moberly and Prophet River First Nations who intervened in this appeal.