On November 2, 2017, the Supreme Court of Canada (SCC) ruled in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) that a decision to approve the Jumbo Glacier Resort did not violate the Ktunaxa Nation’s (Ktunaxa) right to freedom of religion and did not breach the Crown’s duty to consult. The decision focuses on the reciprocal obligations of aboriginal groups in the consultation process and the bounds of accommodation.

BACKGROUND

The decision relates to a proposal for a year-round ski resort in southeastern British Columbia. Beginning in 1991, Glacier Resorts Ltd. (Glacier Resorts) underwent multiple regulatory review processes regarding the development of the Jumbo Glacier Resort. Over a period of 20 years, Glacier Resorts and the Crown consulted with the Ktunaxa and the Shuswap peoples (Shuswap) regarding the project’s development. Ktunaxa participated in public consultations, were extensively involved in the environmental assessment process, and began negotiations for an accommodation and benefits agreement. Ktunaxa was also granted capacity funding to facilitate its participation in the regulatory and consultation processes. Shuswap parted ways with the Ktunaxa and expressed their support for the project in 2004.

The site of the ski resort is within an area of spiritual significance to the Ktunaxa Nation because they believe in the existence and importance of the Grizzly Bear Spirit in the area of the proposed resort project.

In June 2009, the provincial Minister of Environment (Minister) advised the Ktunaxa that, in his opinion, a reasonable consultation process had occurred and significant accommodation of the Ktunaxa’s spiritual concerns had been made. Accommodations included a 60 per cent reduction in the controlled recreation area of the resort, the removal of areas critical to grizzly bear habitat and visitation from the resort area, and a commitment to pursuing a wildlife management area to address potential impacts in relation to grizzly bears and aboriginal claims relating to the spiritual value of the valley. An agreement on accommodation seemed likely.

One week later, “the Ktunaxa adopted an uncompromising position—that accommodation was impossible because a ski resort with lifts to glacier runs and permanent structures would drive Grizzly Bear Spirit from Qat’muk and irrevocably impair their religious beliefs and practices.”

The Minister engaged in “fruitless efforts to revive the consultation process,” but was unsuccessful. The Minister declared that reasonable consultation had occurred and approved the project, despite the Ktunaxa’s opposition. The Ktunaxa sought judicial review of the Minister’s decision, contending that the decision violated their section 2(a) Charter right to freedom of religion and the section 35 constitutional right to consultation and accommodation. The British Columbia Supreme Court and Court of Appeal both denied the relief sought by the Ktunaxa.

SCC DECISION

The SCC dismissed the appeal in two concurring decisions. The SCC unanimously concluded that the Minister’s decision that the Crown had met its duty to consult and accommodate under section 35 of the Constitution Act, 1982 was reasonable. Seven justices found that the Minister’s decision did not violate the Ktunaxa’s right to freedom of religion, while two other justices concluded the violation is saved by the balancing process under section 1 of the Charter.

Duty to Consult

Both decisions concluded that the Minister’s decision that consultation and accommodation had been sufficient to satisfy section 35 was reasonable. The record demonstrated that the Ktunaxa spiritual claims had been acknowledged from the outset, that deep consultation had taken place, and that many accommodations had been made. However, an accommodation that would not compromise the Minister’s statutory mandate to dispose of lands in the public interest was unavailable. “In the end, he found that the fulfillment of his statutory mandate prevented him from giving the Ktunaxa a veto right over the construction of permanent structures on over fifty square kilometres of public land.”

The SCC emphasized that the section 35 right to consultation and accommodation is a right to a process, not a right to a particular outcome. While the Crown is obligated to provide notice and information on the project, and to consult with affected aboriginal groups, aboriginal groups have reciprocal obligations to clearly define the elements of their claim early on in the process.

Freedom of Religion

To establish an infringement of the right to freedom of religion, a claimant must prove: that he or she sincerely believes in a practice or belief that has a nexus with religion; and that the impugned state conduct interferes, in a manner that is non-trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief.

The lower courts did not question the sincerity of the Ktunaxa’s beliefs. However, the majority of the SCC concluded that the Minister’s decision to approve the resort had not been shown to interfere with either the Ktunaxa freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. The majority held that the Ktunaxa were not seeking protection for their religious practices; but rather, were seeking to protect the presence of the Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it.

Two justices disagreed. In their view, the proposed resort would render the Ktunaxa’s religious beliefs devoid of all religious significance, since any song, rituals or ceremonies in recognition of Grizzly Bear Spirit would no longer have any significance if the Grizzly Bear Spirit departed. However, the infringement was saved under section 1 of the Charter. The Minister had appropriately balanced the Ktunaxa’s section 2(a) right with the statutory objectives of administering Crown land and disposing of it in the public interest. The Minister concluded that the fulfilment of his statutory mandate prevent him from giving the Ktunaxa a veto right over the area.

COMMENTARY

It appears that the decision in this case was largely driven by the factual context surrounding the consultation process. The project proponent and provincial Crown had engaged in deep consultation with the Ktunaxa and “[a]t a point when it appeared that all major issues had been resolved, the Ktunaxa…adopted a new, absolute position that no accommodation was possible because permanent structures would drive Grizzly Bear Spirit from Qat’muk.” It is possible that in a different set of circumstances, a claim to an area on the basis of a spiritual practice or interest may carry more weight.

It is also clear that the majority viewed the appeal as asking the courts to pronounce on the validity of the Ktunaxa’s claim to a sacred site and associated spiritual practices within the context of judicial review. The SCC emphasized that proof of aboriginal rights requires a full evidentiary record and “cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation.” The SCC also stated that the late aspect of the Ktunaxa claim “seemed designed to require a particular accommodation rather than to assert and support a particular pre-contact practice, custom, or tradition that took place on the territory in question.”

Despite this ruling, the resort has not been cleared to proceed. Under its environmental assessment certificate, Glacier Resorts was required to substantially start its project within five years of the date of its certificate. In 2015, the provincial Minister of the Environment ruled that the Jumbo Glacier Resort project had not been substantially started by this deadline. As a result, the project’s certificate expired and a new environmental assessment will be required. Glacier Resorts has filed a petition disputing that decision on the basis that it was made with incomplete and incorrect information. That petition is pending before the courts.