Environmental, Indigenous and Natural Resources Blog

The Supreme Court of Canada (“SCC”) rendered its decision in Ktunaxa Nation v. British Columbia (Forest, Lands and Natural Resources Operations) on November 2, 2017. This decision has important implications for both project proponents and Aboriginal groups in Canada.

Background

The Ktunaxa National Council represents the four Ktunaxa communities in Canada: A·kisq̓nuknik̓ (Columbia Lake Indian Band), Yaqaón Nuñkiy (Lower Kootenay Indian Band), Aq’am (St. Mary’s Indian Band) and Akan'kunik (Tobacco Plains Indian Band). The Ktunaxa traditional territory is said to cover lands in British Columbia, Alberta, Washington, Idaho, and Montana.

The dispute stems from a proposal by Glacier Resorts Ltd. (“Glacier”) to build a year-round ski resort in the Jumbo Valley near Invermere, BC (the “Proposed Resort”). This led to decades of regulatory processes and negotiations between Glacier, the BC government and stakeholders (including the Ktunaxa and the Shuswap peoples who inhabit the Jumbo Valley). During this engagement, the Ktunaxa asserted that the Proposed Resort was located within an area of paramount spiritual significance known as Qat’muk. The Ktunaxa asserted that Qat’muk is home to an important population of grizzly bears and to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology.

Consultation followed and the original proposal was modified. While the Shuswap supported the modified proposal, the Ktunaxa were not satisfied and sought further consultation. Following further discussions, the Ktunaxa took the position that accommodation was impossible because allowing such development, and in particular permanent structures, would drive Grizzly Bear Spirit from Qat’muk and irrevocably impair their religious beliefs and render their related religious practices meaningless.

In 2012, the BC Minister of Forest, Lands, and Natural Resources (the “Minister”) approved the building of the Proposed Resort. The Ktunaxa applied for judicial review of the Minister’s decision, arguing that it violated their right to freedom of religion under s. 2(a) of the Charter of Rights and Freedoms, and breached the Crown’s duty consult and accommodate under s. 35 of the Constitution Act, 1982.

Lower Court Decisions

At trial, the chambers judge dismissed the petition.[i] He held that:

1. s. 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
2. the process of consultation and accommodation with respect to the Ktunaxa’s asserted Aboriginal rights had been reasonable.

The BC Court of Appeal affirmed the trial decision,[ii] and the Ktunaxa appealed to the SCC.

Supreme Court of Canada

The SCC (9:0) dismissed the appeal, with two judges (Moldaver and Côté JJ.) writing partially concurring reasons.

(a) Freedom of Conscience and Religion

Where a claim is made that a law or governmental act violates freedom of religion, it must be determined whether the claim falls within the scope of s. 2(a) of the Charter. The scope of s. 2(a) has been defined as protecting “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious beliefs by worship and practice or by teaching and dissemination.”[iii]

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.[iv]

The first stage of the test was met in this case – none of the parties disputed that the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit, or that they believe that permanent development in Qat’muk will drive Grizzly Bear Spirit out.

McLachlin C.J. and Rowe J., writing for the majority, ruled that the second stage of the test had not been met – the Minister’s decision did not interfere with the Ktunaxa’s freedom to believe in the Grizzly Bear Spirit or to manifest this belief. Rather, the majority held that the Ktunaxa’s claim was that s. 2(a) of the Charter protects the presence of Grizzly Bear Spirit in Qat’muk, which is a novel claim. The majority declined to extend s. 2(a) beyond the scope recognized in past jurisprudence, finding that the state’s duty under s. 2(a) is not to project the object of beliefs or a “spiritual focal point of worship,” but rather to protect the freedom to hold such beliefs and to manifest them in worship, practice, teaching, or dissemination.

Therefore, the majority held that the Ktunaxa’s claim, which sought to protect Grizzly Bear Spirit and the subjective spiritual meaning they derived from it, was beyond the scope of s. 2(a). The majority also noted that the proposed extension of s. 2(a) would put deeply held personal beliefs under judicial scrutiny, which would be inconsistent with the principles underlying freedom of religion.[v]

In partially concurring reasons, Moldaver J. (along with Côté J.) disagreed with the majority and found that the Minister’s decision interfered with the Ktunaxa’s ability to act in accordance with their religious beliefs and practices in a manner that is more than trivial or insubstantial, and that the Ktunaxa’s claim falls within the scope of s. 2(a).

In particular, Moldaver J. held that 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 because the person can no longer act in accordance with his or her religious beliefs. Applying this reasoning, Moldaver J. held that the Minister’s decision to approve the Proposed Resort will render all of the Ktunaxa’s religious beliefs related to Grizzly Bear Spirit devoid of any spiritual significance. Accordingly, the Ktunaxa will be unable to perform songs, rituals or ceremonies in recognition of Grizzly Bear Spirit in a manner that has any religious significance for them, which amounts to a breach of s. 2(a).

Moldaver J. also stated that this type of state interference is a “reality where individuals find spiritual fulfillment through their connection to the physical world,” a central feature of Indigenous religions. Moldaver J. held that, in the Indigenous context, land may itself be sacred and the spiritual realm is inextricably linked to the physical world, which means that state action that impacts land can sever the connection to the divine and render Indigenous religious beliefs and practice devoid of their spiritual significance. Moldaver J. argued that this feature of Indigenous religions should be taken into account in assessing whether s. 2(a) has been infringed, so as to ensure that all religions are afforded the same level of protection from state interference.

However, Moldaver J. ultimately concluded that the Minister’s decision was reasonable because it reflected a proportionate balancing between the Ktunaxa’s Charter rights and the relevant statutory objectives (i.e., to administer Crown land and dispose of it in the public interest).[vi]

(b) Duty to Consult and Accommodate

The Minister’s decision regarding whether there has been adequate consultation and accommodation is entitled to deference – this means that the reviewing court does not decide the issue for itself, but rather ensures that the Minister’s finding was reasonable.[vii]

The majority stated that the constitutional guarantee of s. 35 of the Constitution Act, 1982 applies to treaty rights, proven or settled Aboriginal rights and title claims, and potential rights in as-yet unproven Aboriginal claims. This obligation flows from the duty of the honour of the Crown and is constitutionalized by s.35. The content of this duty varies with the prima facie strength of the claim and the effect the proposed development or use will have on the claimed Aboriginal right.[viii] This obligation flows from the duty of the honour of the Crown and is constitutionalized by s. 35.

The Court held that the Ktunaxa’s petition was, in essence, asking the courts to pronounce on the validity of their claim to a sacred site and associated spiritual practices. The Court found that this declaration could not be made by a court sitting in judicial review of an administrative decision (i.e., the Minister’s decision to approve the development) – it could only be made after a trial of the issue and on the basis of proper and tested evidence.

All nine judges concluded that the Minister’s decision that consultation sufficient to satisfy s. 35 was not unreasonable. In reaching this conclusion, the majority (supported by the two concurring judges on these points) noted that the Ktunaxa’s spiritual claims had been acknowledged from the outset, negotiations spanning two decades and deep consultation had taken place, and many changes had been made to accommodate the Ktunaxa’s spiritual concerns.

Other Challenges for the Project

The Environmental Assessment Certificate (the “Certificate”) issued in respect of the Proposed Resort included a condition that Glacier must have substantially started the construction within five years of the date of issuance (August 3, 2004). The BC Environmental Assessment Office granted Glacier a one-time extension of this requirement in 2009, imposing a new deadline of October 12, 2014. In June 2015, the BC Minister of Environment determined that the project had not substantially started, so the original Certificate expired.

Conclusion

The Crown’s duty to consult Indigenous peoples in the context of the development of major projects has been the subject of a great deal of judicial scrutiny in the last fifteen years. This decision represents a relatively new development where Charter claims (in this case, freedom of religion) are combined with consultation issues. Given the length of time involved in the regulatory and judicial processes, it is doubtful that the outcome is satisfactory to any of the participants. This most recent decision will provide some guidance for all participants (Crown, Indigenous groups and project proponents) facing similar challenges in the future.

[i] Reasons indexed at 2014 BCSC 568.

[ii] Reasons indexed at 2015 BCCA 352.

[iii] v. Big M Drug Mart, [1985] 1 S.C.R. 295 at p. 336 (per Dickson J.).

[iv] Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para. 34.

[v] Syndicat Northcrest v. Anselem, 2004 SCC 47 at paras. 49-50.

[vi] Doré v. Barreau du Québec, 2012 SCC 12; Loyola High School v. Quebec (Attorney General), 2015 SCC 12.

[vii] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 62.

[viii] Ibid at paras. 43-44.