On November 2, 2017, the Supreme Court of Canada dismissed the Ktunaxa Nation’s appeal in Ktunaxa Nation v Minister of Forests, Lands, Natural Resource Operations, 2017 SCC 54. This decision addressed the nature and scope of the right to freedom of religion in connection with a place, and in particular, how this should be understood in the context of a First Nation claimant with spiritual connections to a sacred site seeking to prevent development of that site. The Supreme Court held that although Indigenous spiritual beliefs were entitled to the protection of the freedom of religion sections of the Canadian Charter of Rights and Freedoms (the "Charter"), that protection did not extend to lands of spiritual significance.
- The Ktunaxa requested that the Court protect the subject of its religion (the Grizzly Bear Spirit) rather than their ability to hold or manifest their religious beliefs, as a result, the majority of the Supreme Court held that the Ktunaxa’s claim did not fit within the scope of freedom of religion pursuant to section 2(a) of the Charter.
- The Supreme Court confirmed that the process of consultation and accommodation offered met the standard of reasonableness even though the Minister was unable to reach agreement with the Ktunaxa on ways to accommodate their asserted rights.
The Ktunaxa are an Indigenous people who describe their traditional territory to be about 70,000 square kilometers in the Columbia and Kootenay River valleys and parts of the Purcell, Selkirk and Rocky Mountains in what is now British Columbia, Alberta, Montana, Idaho and Washington.
The Jumbo Glacier Resort is a ski resort in the Jumbo Valley within an area of the Ktunaxa’s claimed traditional territory, called Qat’muk. The Ktunaxa asserted that Qat’muk, located about 50 kilometres west of Invermere, B.C., is a sacred area of central significance to the Ktunaxa people, being the Grizzly Bear Spirit’s home or territory.
During the regulatory and consultation process for the ski resort, which took place over 20 years starting in 1991, the resort plan had been changed to add new protections for Ktunaxa interests, including a 60% reduction in the resort development area and measures to reduce the impact of the development on grizzly bears.
In 2009, late in the consultation process, the Ktunaxa informed the Minister that no accommodation of their belief was possible. The Ktunaxa claimed that their religious beliefs require that all persons refrain from constructing permanent overnight human accommodation within Qat’muk, being the home of the Grizzly Bear Spirit. According to the Ktunaxa, allowing such development within Qat’muk would cause the Spirit to leave Qat’muk leaving the Ktunaxa without spiritual guidance and render their rituals and songs about the Spirit meaningless.
After subsequent consultation efforts failed, the Minister decided that sufficient consultation had occurred and approved a Master Development Agreement (“MDA”) between Glacier Resorts Ltd. and the B.C. Minister of Forests Lands and Natural Resource Operations which authorized the Jumbo Glacier Resort.
In 2012, the Ktunaxa sought judicial review of the Minister’s decision, arguing that the Minister breached his duty to consult and accommodate, and violated their right to freedom of religion contained in s. 2(a) of the Charter.
The Chambers Judge dismissed the Ktunaxa’s application for judicial review, finding that section 2(a) protects against state coercion or constraint on individual conduct but does not protect against “subjective loss of meaning” to a religion without state coercion or constraint, and that consultation was reasonable.
The Court of Appeal dismissed the appeal but held that the proper test for section 2(a) was whether “the subjective meaning more than trivially or substantially interfere[d] with the communal dimension” of the section 2(a) right and that section 2(a) does not extend to restrict the behaviour of others who do not share that belief in order to preserve subjective religious meaning.
The Supreme Court of Canada dismissed the Ktunaxa’s appeal on both grounds.
(a) Charter Rights Infringement
The majority of the Court, in reasons written by McLachlin C.J., concluded that the claim falls outside the scope of section 2(a) of the Charter (freedom of conscience and religion) because that section protects freedom to hold and manifest religious beliefs. It does not protect the “object of beliefs”, or the “spiritual focal point of worship” such as the Grizzly Bear Spirit, or the subjective spiritual meaning they ascribe from it.
The Court advised that adjudicating how exactly a spirit is to be protected, as the Ktunaxa sought from the Court, would require the court to assess the content and merits of religious beliefs, which would be inconsistent with the principles underlying freedom of religion.
The Court was split on whether the Ktunaxa’s claim fell within the scope of section 2(a). According to Moldaver and Côté JJ., section 2(a) is not limited to the freedom to hold a belief and manifest that belief through religious practices, but extends to protecting spiritual beliefs and practices from being rendered devoid of their significance.
However, following Doré v. Barreau du Québec, 2012 SCC 12, the concurring judges held that the decision was reasonable and reflected a proportionate balancing between the s. 2(a) right and the Minister’s statutory objectives, including the disposition of Crown land in the public interest. They acknowledged that granting the Ktunaxa a power to veto development over the land would effectively grant the Ktunaxa with the power to exclude others from building permanent structures over 50 square kilometres of public land, a significant property interest.
(b) Duty to Consult and Accommodate
The Supreme Court unanimously agreed that the process of consultation and accommodation offered met the standard of reasonableness and the Minister did not breach his duty to consult and accommodate, despite being unable to agree with the Ktunaxa on ways to accommodate their asserted rights.
The Supreme Court was critical of the underlying purpose of the petition brought by the Ktunaxa. According to the Supreme Court, the Ktunaxa were, in effect, seeking a declaration of Aboriginal rights over a sacred site. Such a declaration would require a full trial and proper evidentiary record. A declaration of this nature could not be granted in the context of an application for judicial review of an administrative decision to approve a development project.
With respect to the consultation process itself, the Supreme Court was also critical of the position adopted by the Ktunaxa. While the record demonstrated that the Minister engaged in deep consultation, the Ktunaxa sought a ban on permanent construction which amounted to a veto over development. In these circumstances, the Supreme Court re-iterated what it set out in Haida:
“…s. 35 does not give unsatisfied claimants a veto over development. Where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group.”
The Supreme Court did indicate, however, that injunctive relief to delay the project may be available, leaving the door open for the Ktunaxa to pursue litigation to establish Section 35 rights to Qat’muk in a separate proceeding.
This decision clarifies that although Indigenous spiritual beliefs are protected by the Charter, that protection does not extend to lands of spiritual significance or sacred sites. At the same time, the Supreme Court’s reasons highlight three key takeaways for Indigenous groups and industry participants in respect to such claims going forward:
- Like any other belief system, Indigenous sacred beliefs are religious and can receive protection under s. 2(a) of the Charter (not just s. 35), but s. 2(a) does not protect the subject matter of the beliefs (here the Qat’muk site).
- With respect to unproven rights, Section 35 gives the right to a process, not the right to a particular outcome or a veto.
- Judicial review is not the appropriate forum for a declaration of the validity of a claim to a sacred site and associated spiritual practices – until such a claim is made out in a trial, the appropriate process is consultation as laid out in Haida.
In addition, the Supreme Court succinctly summarized its expectations for parties engaged in the consultation process:
 The steps in a consultation process may be summarized as follows:
- Initiation of the consultation process, triggered when the Crown has knowledge, whether real or constructive, of the potential existence of an Aboriginal right or treaty right and contemplates conduct that might adversely affect it;
- Determination of the level of consultation required, by reference to the strength of the prima facie claim and the significance of the potential adverse impact on the Aboriginal interest;
- Consultation at the appropriate level; and
- If the consultation shows it is appropriate, accommodation of the Aboriginal interest, pending final resolution of the underlying claim.
This summary of the steps in a consultation process is offered as guidance to assist parties in ensuring that adequate consultation takes place, not as a rigid test or a perfunctory formula. In the end there is only one question — whether in fact the consultation that took place was adequate. [Emphasis added.]