On November 2, 2017 in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017, SCC 54, the Supreme Court of Canada dismissed an appeal by the Ktunaxa Nation (“Ktunaxa”) concerning the approval of a year-round ski resort in the Jumbo Valley near Invermere, British Columbia. The Jumbo Valley is located in the northwestern part of the Ktunaxa territory in an area the Ktunaxa call Qat’muk. The appeal raised the novel issue of whether approval of the ski resort infringed the Ktunaxa’s right to freedom of religion under the Canadian Charter of Rights and Freedoms (the “Charter”). A majority of the Supreme Court ruled that it did not.
Facts
The Jumbo resort was proposed by Glacier
Resorts Ltd. (“Glacier Resorts”) in 1991. Early on in the consultation process,
the Ktunaxa raised concerns with Glacier Resorts about the impact of the
resort. The Ktunaxa asserted that Qat’muk was both ecologically sensitive and a
place of spiritual significance. Consultation between the parties led to
significant changes to the original resort proposal. Late in the consultation
process, however, the Ktunaxa adopted a new, uncompromising position that
accommodation was impossible because permanent structures would drive the
Grizzly Bear spirit from Qat’muk and irrevocably impair the Ktunaxa’s religious
beliefs and practices. After failed efforts to revive the consultation process
and reach agreement, the Minister declared that reasonable consultation had
occurred and approved the resort.
Ktunaxa sought judicial review of the
Minister’s decision before the Supreme Court of Canada on two grounds:
- the project would violate the Ktunaxa’s freedom of religion under s. 2(a) of the Charter; and
- the government breached the duty of consultation and accommodation imposed on the Crown by s. 35 of the Constitution Act, 1982.
Religious
Freedom (Section 2(a) of the Charter)
Following earlier case law, the Court
confirmed that section 2(a) of the Charter
has two aspects – the freedom to hold religious beliefs and the freedom to
manifest those beliefs. 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
insubstantial, with his or her ability to act in accordance with that practice
or belief.
The court accepted that the Ktunaxa
sincerely believe in the existence and importance of the Grizzly Bear Spirit
and that permanent development in Qat’muk would drive this spirit from the
Qat’muk. However, the Supreme Court refused to accept that the Minister’s
approval interfered with the Ktunaxa’s ability to act in accordance with this
belief. The Court noted that the appellants were not seeking protection to
believe in the Grizzly Bear Spirit or to pursue practices related to it but
instead, to protect Grizzly Bear Spirit itself. The court ruled that this was
beyond the scope of the protection provided by section 2(a) and rejected the
Ktunaxa’s argument on this point.
Consultation
and Accommodation
Where a permit is sought to use or
develop lands subject to an unproven Aboriginal claim, the government is
required to consult with the affected Aboriginal group, and where appropriate,
accommodate the group’s claim pending is final resolution.
The extent of the Crown’s duty to consult
and accommodate in the case of an unproven Aboriginal claim varies with the
apparent strength of the claim and the effect the proposed development would
have on the claimed Aboriginal right. A strong claim or significant impact may
require deep consultation. A weak claim or transient impact may attract a
lighter duty of consultation. Significantly, section 35 guarantees a process,
not a particular result. There is no guarantee that the specific accommodation
sought will be warranted or possible.
The Court noted that negotiations between
Glacier Resorts and the Ktunaxa had spanned two decades and found that deep
consultation had taken place. Multiple changes had been made to the project to
accommodate the Ktunaxa’s spiritual claims and environmental concerns. At a
point when it appeared that all major issues had been resolved, the Ktunaxa
adopted a new, absolute position that no accommodation was possible because
permanent structures would drive the Grizzly Bear spirit from Qat’muk. The
Minister attempted to consult with the Ktunaxa on the newly formulated claim,
but was told that only a total rejection of the project would be satisfactory.
After reviewing the evidence, the Supreme Court ruled that the Minister’s
conclusion that sufficient consultation had occurred was reasonable and
dismissed the appeal.
Analysis
Ktunaxa
Nation confirms that while section 2(a) of the Charter protects the freedom to worship,
it does not protect the spiritual focal point of worship. In other words, section 2(a) protects the
believer, not the belief. An extension of section 2(a) as requested by the
Ktunaxa would theoretically have allowed them to control development on public
lands according to their subjective spiritual beliefs. The Supreme Court’s
rejection of this interpretation certainly provides greater predictability to
the law. Courts in Canada are well positioned to assess whether state conduct
interferes with an individual’s ability to hold and manifest his or her belief.
They are less suited to assess whether state conduct will drive a particular
spirit from an area, since this would involve assessing a subjective belief.
With respect to consultation, the
decision is a reminder that section 35 only guarantees a process. While the
Minister did not offer the ultimate accommodation demanded by the Ktunaxa
(complete rejection of the resort), the Court reiterated that section 35
guarantees a right to consultation and accommodation, not a right to particular
outcome. Section 35 does not provide Aboriginal groups with veto power in
relation to developments on their territories.
Though ostensibly a victory for Glacier
Resorts, it remains unclear whether the construction of the resort will
ultimately proceed. The provincial NDP government previously expressed, while
in opposition, unequivocal hostility towards the resort. Whether the government
takes steps to prevent the resort from being constructed remains to be seen. In
any event, Ktunaxa Nation exemplifies the multi-pronged resistance and
delay that many developments now face in an age of environmental and indigenous
activism and increased regulatory scrutiny.