On November 2, 2017, the Supreme Court of Canada released its decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. This case dealt with a novel argument related to the right to freedom of religion under the Canadian Charter of Rights and Freedoms and the interplay with the Crown’s duty to consult and accommodate under section 35 of the Constitution Act, 1982.

The Ktunaxa Nation claimed that the Crown’s decision to allow a ski resort development project violated their right to freedom of conscience and religion under the Charter. The Ktunaxa also claimed the Crown failed to meet its duty to consult and accommodate under section 35.

The Court dismissed the Ktunaxa’s appeal, deciding that the Crown’s approval did not violate the Ktunaxa’s right to freedom of religion and the Crown had fulfilled its duty to consult. The Court emphasized that section 35 guarantees a process, not a result, and it does not give unsatisfied aboriginal rights claimants a veto.

History of the Dispute

The dispute centered on Glacier Resorts Ltd.'s plans to build a year-round ski resort in the Jumbo Valley in southeastern British Columbia. The Ktunaxa opposed the plans. They considered the Jumbo Valley—which they call Qat'muk—to be the home of the Grizzly Bear Spirit, and were concerned about the impact of development.

After nearly two decades of negotiations between Glacier, the government, and key stakeholders including the Ktunaxa, the B.C. government approved a Master Development Agreement with Glacier Resorts in 2012.

Late in that process, the Ktunaxa adopted the position that accommodation was impossible. They believed the project would cause irreparable harm to their relationship with the Grizzly Bear Spirit, since the development would drive the Spirit from Qat’muk, which would destroy the foundation for their spiritual belief. The Ktunaxa’s religious beliefs would then be rendered devoid of religious significance and could not be passed on to future generations.

The Ktunaxa applied to court to review the approval, claiming:

  1. the Crown’s approval of the project violated their right to freedom of religion under section 2(a) of the Charter; and
  2. the Crown failed in its duty to consult under section 35 of the Constitution.

The Ktunaxa’s judicial review was dismissed, and so was the appeal to the British Columbia Court of Appeal.

The Supreme Court of Canada also dismissed the Ktunaxa’s appeal. On the freedom of religion claim, the majority opinion, led by Chief Justice McLachlin, found that section 2(a) did not extend so far as to protect the object of the Ktunaxa’s spiritual belief. The minority opinion, led by Justice Moldaver, found that the destruction of the object of the Ktunaxa’s spiritual belief substantially impaired their ability to practice that belief which violated section 2(a), but the Minister had proportionately balanced this right with the statutory objective to administer Crown land in the public interest.

Both the majority and minority rejected the Ktunaxa's argument that the government had not appropriately consulted and accommodated the Ktunaxa.

The Freedom of Religion Under the Charter

The majority of the SCC found that the Ktunaxa’s claim did not fall within the scope of section 2(a) of the Charter. The Court explained section 2(a) requires a claimant to demonstrate:

  1. he or she clearly believed in a practice or belief that has a nexus with religion; and
  2. 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.

To meet the second part of the test, the claimant must show that the government conduct impairs one of two aspects of the freedom of religion,—i.e., 1) the freedom to hold a religious belief, or 2) the freedom to manifest it.

The majority decided the Ktunaxa failed on the second part of the test because they could not show the Minister’s decision interfered either with their freedom to believe in the Grizzly Bear Spirit or their freedom to manifest that belief. Rather, the Ktunaxa claim sought to establish that section 2(a) of the Charter protects the presence of the Grizzly Bear Spirit in Qat’muk and the subjective meaning the Ktunaxa derive from it. These aspects of the claim extend beyond the scope of section 2(a).

The majority opinion offered further importance guidance, including:

  • Section 2(a) analysis is not affected by whether a belief is historical or recent.
  • Section 2(a) does not extend to protect the object of religious beliefs (in this case, the presence of the Grizzly Bear Spirit).
  • In relation to their section 2(a) claim, the Ktunaxa stand in the same position as non-Aboriginal litigants.

This decision limits the section 2(a) protection to circumstances where the right to hold or manifest a belief is substantially impaired.

The minority opinion agreed with the overall result, but objected to this element of the majority opinion.

“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. … 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.”

Despite the infringement, the Minister’s decision was reasonable and should stand. The Minister proportionately balanced the Ktunaxa’s section 2(a) right with his statutory objectives. He tried to limit the impact of the project approval as much as reasonably possible and established significant accommodation measures that addressed the Ktunaxa’s spiritual connection to the land.

Duty to Consult Under Section 35 of the Constitution

The Court affirmed and applied the principles from Haida Nation v. BC (Minister of Forests).1 Although the Ktunaxa did not get the accommodation they sought (complete rejection of the project), the Court found that the Minister was reasonable in deciding that the government had met its duty to consult.

The Crown engaged in two decades of consultation and had acknowledged the Ktunaxa’s claims from the outset. Further, many changes were made to the project to accommodate these claims. Finally, the Court found that the process of consultation and accommodation protected by section 35 was brought to a close in late 2009 when the Ktunaxa adopted the position that accommodation would be impossible and nothing short of a rejection of the project would suffice.

The Court also outlined limits on the scope of a judicial review. The Ktunaxa, in essence, sought a pronouncement on the validity of their claim to a sacred site “under the guise of judicial review.”2 The Court clarified that judicial review of an administrative decision is not the forum for unproven Aboriginal rights claims.

“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 process.”

The standard for the judicial review was limited to whether the Minister’s decision was reasonable. The record showed the Minister did not mischaracterize the claim and treated the overall spiritual claim to be strong. Further, the Minister did not improperly assess the adverse impact of the project on the spiritual interests of the Ktunaxa.

Conclusion

The case clarifies important aspects of the law on aboriginal rights, including how aboriginal spiritual beliefs are protected under the Charter and section 35. While the decision defines limits on the section 2(a) Charter test, it also leaves questions unanswered about how section 35 may apply to aboriginal spiritual beliefs and practices that are inherently connected to the land. For example, if the focus had been on spiritual practices related to a specific site, rather than characterizing the land as the object of a religious belief, would section 35 offer greater protection than section 2(a)?

Another interesting aspect relates to the extraordinary length of the consultation period —over 20 years. The decision notes that the content of the consultation is more important than the length of consultation, but the length of time is a consideration. The time and effort necessary to discharge the duty to consult is always an area of uncertainty. While the Crown and project proponent must approach consultation with a sincere effort to understand and reconcile differing interests, this case also reaffirms that aboriginal groups must set out their claims clearly and early.

The case also limits the extent to which asserted aboriginal rights should be determined in a judicial review. This much-needed guidance answers many challenging aspects of practice in such cases related to proof the asserted rights.

Finally, the case reaffirms a principle that threads through many of the duty to consult cases involving asserted aboriginal rights. Section 35 guarantees a process—consultation—but not a result or a veto.