Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 – Constitutional law — Charter of Rights — Freedom of religion
On appeal from a judgment of the British Columbia Court of Appeal (2015 BCCA 352) affirming a decision of Savage J. (2014 BCSC 568).
The Ktunaxa are a First Nation whose traditional territories include an area in British Columbia that they call Qat’muk. Qat’muk is a place of spiritual significance for them because it is home to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology. Glacier Resorts sought government approval to build a year‑round ski resort in Qat’muk. The Ktunaxa were consulted and raised concerns about the impact of the project, and as a result, the resort plan was changed to add new protections for Ktunaxa interests. The Ktunaxa remained unsatisfied, but committed themselves to further consultation. Late in the process, the Ktunaxa adopted the position that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk and therefore irrevocably impair their religious beliefs and practices. After efforts to continue consultation failed, the respondent Minister declared that reasonable consultation had occurred and approved the project. The Ktunaxa brought a petition for judicial review of the approval decision on the grounds that the project would violate their constitutional right to freedom of religion, and that the Minister’s decision breached the Crown’s duty of consultation and accommodation. The chambers judge dismissed the petition, and the Court of Appeal affirmed that decision.
Held (9-0): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ.:
The Minister’s decision does not violate the Ktunaxa’s s. 2(a) Charter right to freedom of religion. In this case, the Ktunaxa’s claim does not fall within the scope of s. 2(a) because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the Minister’s decision to approve the project. To establish an infringement of the right to freedom of religion, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) 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. In this case, the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit. They also believe that permanent development in Qat’muk will drive this spirit from that place.
The second part of the test, however, is not met. The Ktunaxa must show that the Minister’s decision to approve the development interferes either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. Yet the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. This is a novel claim that would extend s. 2(a) beyond its scope and would put deeply held personal beliefs under judicial scrutiny. The state’s duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.
In addition, the Minister’s decision that the Crown had met its duty to consult and accommodate under s. 35 of the Constitution Act, 1982 was reasonable. The Minister’s decision is entitled to deference. A court reviewing an administrative decision under s. 35 does not decide the constitutional issue de novo raised in isolation on a standard of correctness, and therefore does not decide the issue for itself. Rather, it must ask whether the decision maker’s finding on the issue was reasonable. The constitutional guarantee of s. 35 is not confined to treaty rights or to proven or settled Aboriginal rights and title claims. Section 35 also protects the potential rights embedded in as‑yet unproven Aboriginal claims and, pending the determination of such claims through negotiation or otherwise, may require the Crown to consult and accommodate Aboriginal interests. This obligation flows from the honour of the Crown and is constitutionalized by s. 35.
In this case, the Ktunaxa’s petition asked the courts, in the guise of judicial review of an administrative decision, to pronounce on the validity of their claim to a sacred site and associated spiritual practices. This declaration cannot be made by a court sitting in judicial review of an administrative decision. In judicial proceedings, such a declaration can only be made after a trial of the issue and with the benefit of pleadings, discovery, evidence, and submissions. Nor can administrative decision makers themselves pronounce upon the existence or scope of Aboriginal rights without specifically delegated authority. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation. To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes. In the interim, while claims are resolved, consultation and accommodation are the best available legal tools for achieving reconciliation.
The record here supports the reasonableness of the Minister’s conclusion that the s. 35 obligation of consultation and accommodation had been met. The Ktunaxa spiritual claims to Qat’muk had been acknowledged from the outset. Negotiations spanning two decades and deep consultation had taken place. Many changes had been made to the project to accommodate the Ktunaxa’s spiritual claims. At a point when it appeared 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. The Minister sought to consult with the Ktunaxa on the newly formulated claim, but was told that there was no point in further consultation. The process protected by s. 35 was at an end.
The record does not suggest, conversely, that the Minister mischaracterized the right as a claim to preclude development, instead of a claim to a spiritual right. The Minister understood that this right entailed practices which depended on the continued presence of Grizzly Bear Spirit in Qat’muk, which the Ktunaxa believed would be driven out by the development. Spiritual practices and interests were raised at the beginning of the process and continued to be discussed throughout. Nor did the Minister misunderstand the Ktunaxa’s secrecy imperative, which had contributed to the late disclosure of the true nature of the claim: an absolute claim to a sacred site, which must be preserved and protected from permanent human habitation. The Minister understood and accepted that spiritual beliefs did not permit details of beliefs to be shared with outsiders. Nothing in the record suggests that the Minister had forgotten this fundamental point when he made his decision that adequate consultation had occurred. In addition, the Minister did not treat the broader spiritual right as weak. The Minister considered the overall spiritual claim to be strong, but had doubts about the strength of the new, absolute claim that no accommodation was possible because the project would drive Grizzly Bear Spirit from Qat’muk. The record also does not demonstrate that the Minister failed to properly assess the adverse impact of the development on the spiritual interests of the Ktunaxa.
Ultimately, the consultation was not inadequate. The Minister engaged in deep consultation on the spiritual claim. This level of consultation was confirmed by both the chambers judge and the Court of Appeal. Moreover, the record does not establish that no accommodation was made with respect to the spiritual right. While the Minister did not offer the ultimate accommodation demanded by the Ktunaxa — complete rejection of the ski resort project — the Crown met its obligation to consult and accommodate. Section 35 guarantees a process, not a particular result. There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible. Section 35 does not give unsatisfied claimants a veto. Where adequate consultation has occurred, a development may proceed without consent.
Per Moldaver and Côté JJ.:
The Minister reasonably concluded that the duty to consult and accommodate the Ktunaxa under s. 35 of the Constitution Act, 1982 was met; however, the Minister’s decision to approve the ski resort infringed the Ktunaxa’s s. 2(a) Charter right to religious freedom.
The first part of the s. 2(a) test is not at issue in this case. The second part focuses on whether state action has interfered with the ability of a person to act in accordance with his or her religious beliefs or practices. Where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom. Religious beliefs have spiritual significance for the believer. When this significance is taken away by state action, the person can no longer act in accordance with his or her religious beliefs, constituting an infringement of s. 2(a).
This kind of state interference is a reality where individuals find spiritual fulfillment through their connection to the physical world. To ensure that all religions are afforded the same level of protection, courts must be alive to the unique characteristics of each religion, and the distinct ways in which state action may interfere with that religion’s beliefs or practices. In many Indigenous religions, land is not only the site of spiritual practices; land itself can be sacred. As such, state action that impacts land can sever the connection to the divine, rendering beliefs and practices devoid of spiritual significance. Where state action has this effect on an Indigenous religion, it interferes with the ability to act in accordance with religious beliefs and practices.
In this case, the Ktunaxa sincerely believe that Grizzly Bear Spirit inhabits Qat’muk, a body of sacred land in their religion, and that the Minister’s decision to approve the ski resort would sever their connection to Qat’muk and to Grizzly Bear Spirit. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. Their religious beliefs in Grizzly Bear Spirit would become entirely devoid of religious significance, and accordingly, their prayers, ceremonies, and rituals associated with Grizzly Bear Spirit would become nothing more than empty words and hollow gestures. Moreover, without their spiritual connection to Qat’muk and to Grizzly Bear Spirit, the Ktunaxa would be unable to pass on their beliefs and practices to future generations. Therefore, the Minister’s decision approving the proposed development interferes with the Ktunaxa’s ability to act in accordance with their religious beliefs or practices in a manner that is more than trivial or insubstantial. The Minister’s decision is reasonable, however, because it reflects a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives: to administer Crown land and dispose of it in the public interest. A proportionate balancing is one that gives effect as fully as possible to the Charter protections at stake given the particular statutory mandate. When the Minister balances the Charter protections with these objectives, he must ensure that the Charter protections are affected as little as reasonably possible in light of the state’s particular objectives.
In this case, the Minister did not refer to s. 2(a) explicitly in his reasons for decision; however, it is clear from his reasons that he was alive to the substance of the Ktunaxa’s s. 2(a)right. He recognized that the development put at stake the Ktunaxa’s spiritual connection to Qat’muk.
In addition, it is implicit from the Minister’s reasons that he proportionately balanced the Ktunaxa’s s. 2(a) right with his statutory objectives. The Minister tried to limit the impact of the development on the substance of the Ktunaxa’s s. 2(a) right as much as reasonably possible given these objectives. He provided significant accommodation measures that specifically addressed the Ktunaxa’s spiritual connection to the land. Ultimately, however, the Minister had two options before him: approve the development or permit the Ktunaxa to veto the development on the basis of their freedom of religion. Granting the Ktunaxa a power to veto development over the land would effectively give them a significant property interest in Qat’muk — namely, a power to exclude others from constructing permanent structures on public land. This right of exclusion would not be a minimal or negligible restraint on public ownership. It can be implied from the Minister’s reasons that permitting the Ktunaxa to dictate the use of a large tract of land according to their religious belief was not consistent with his statutory mandate. Rather, it would significantly undermine, if not completely compromise, this mandate. In view of the options open to the Minister, his decision was reasonable, and amounted to a proportionate balancing.
Reasons for judgment: McLachlin C.J. and Rowe J. (Abella, Karakatsanis, Wagner, Gascon and Brown JJ. concurring) Reasons Concurring in the Result: Moldaver J. (Côté J. concurring)
Neutral Citation: 2017 SCC 54
Docket Number: 36664
APPLICATION FOR LEAVE TO APPEAL GRANTED
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Official Languages — Federal Courts
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APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
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