The decision of the BC Court of Appeal (“BCCA”) in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) was a novel case in which an Aboriginal group challenged the approval of a project on Charter grounds, as well as the more typical challenge that the Crown failed to meet its duty to consult. On March 17, 2016, the Supreme Court of Canada (“SCC”) granted the Ktunaxa National Council leave to appeal. The outcome of this appeal will have implications for proponents and Aboriginal groups where development of a project may adversely impact on a group’s spiritual practices.
The Ktunaxa Nation Council represents the four Ktunaxa communities in Canada: A·kisq?nuknik? (Columbia Lake Indian Band), Yaqaón Nuñkiy (Lower Kootenay Indian Band), Aq’am (St. Mary’s Indian Band) and Akan'kunik (Tobacco Plains Indian Band). Ktunaxa traditional territory covers approximately 70,000 square kilometres within the Kootenay region of southeastern British Columbia.
In 2012, the Ktunaxa sought judicial review of a Master Development Agreement (“MDA”) entered into between Glacier Resorts Ltd. and the B.C. Minister of Forests Lands and Natural Resource Operations which authorized the construction of 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.
The Ktunaxa claim that their religious beliefs require that all persons refrain from constructing permanent overnight human accommodation within Qat’muk. The Ktunaxa argued that allowing such development within Qat’muk would cause the Spirit to leave Qat’muk. This would leave Ktunaxa without spiritual guidance and render their rituals and songs about the Spirit meaningless.
By 2009, the Ktunaxa had informed the Minister that no accommodation of their belief was possible. When the Minister subsequently approved the ski resort pursuant to the MDA, the Ktunaxa argued that the Minister had breached his duty to consult and accommodate, and violated their Charter right to freedom of religion.
In upholding the decision of the BC Supreme Court (“BCSC”), the BCCA decided that: (i) section 2(a) of the Charter did not confer a right to restrict the otherwise lawful use of land on the basis that such use would result in a loss of meaning to religious practices carried on elsewhere; and, (ii) the process of consultation and accommodation of asserted Aboriginal rights was reasonable.
Freedom of Religion
The BCCA concluded that the Minister reached the appropriate balance between the Charter value at issue — freedom of religion — and the statutory objectives of encouraging outdoor recreation and disposing Crown lands in the public interest.
To assess the Charter compliance of the Minister’s decision to approve the MDA, the BCCA applied the framework in Doré v. Barreau du Québec, 2012 SCC 12 to determine whether the administrative decision violated the Charter. The BCCA noted that the religious custom raised by the Ktunaxa – namely, a prohibition on the development of overnight human accommodation – was one that would have to be performed by all people, regardless of their religious belief. The BCCA held that section 2(a) does not include the freedom to restrain and restrict the behavior of others who do not share that same belief. The Minister's decision to approve the MDA, therefore, did not violate the Ktunaxa’s freedom of religion guaranteed under section 2(a) of the Charter.
Duty to consult
In assessing the Ktunaxa’s arguments regarding the duty to consult, the BCCA agreed with the lower court’s finding that the Minister acted in good faith at all times, and that the process of consultation and accommodation was reasonable, despite being unable to agree with the Ktunaxa on ways to accommodate their asserted rights. In reaching this decision, the BCCA reiterated the chambers judge’s comments that the Ktunaxa did not communicate their position that no accommodation was possible until very late in the process:
 While not dispositive of this case, the fact that those earlier regulatory approvals were not challenged is noteworthy because the Ktunaxa’s position is that no accommodation of their asserted right is possible. This position lies at the extreme end of the spectrum of required accommodation and is, in essence, seeking to veto the MDA and the Proposed Resort entirely. Regardless of the doctrine of secrecy surrounding Ktunaxa religious practices and beliefs, one would reasonably expect such a staunch position to be articulated at the earliest available opportunity as it strikes at the very heart of the object of the regulatory processes already undertaken.
To date, protection of spiritual beliefs and practices of Indigenous peoples has generally been included in assertions made under section 35 of the Constitution. This case raises issues of how section 2(a) of the Charter fits within the body of Aboriginal law developed under section 35. It also raises questions of the court’s role in reviewing administrative decisions that are argued to have violated the Charter.