The Supreme Court of Canada released its decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) 2017 SCC 54, last year on November 2. The decision clarifies that religious freedom does not include protection of the objects of the religion, and that the duty to consult does not convey on Aboriginal people a right to veto development.
The Ktunaxa Nation challenged the development of a year-round ski resort in the Jumbo Valley, arguing that development would breach their constitutional right to freedom of religion under s.2(a) and to protection of Aboriginal interests under s. 35 of Canada’s Constitution Act, 1982.
For more than two decades, Glacier Resorts (a developer) has been negotiating with the B.C government and stakeholders, including the Ktunaxa, on the terms and conditions of the development. Early on in the process, the Ktunaxa Nation raised concerns about the impact of the resort project. Consultation ensued, leading to significant changes to the original proposal. In 2009, the Ktunaxa adopted an uncompromising position, stating that accommodation was impossible because a ski resort with lifts to glacier runs and permanent structures would drive the Grizzly Bear Spirit from the area and irrevocably impair their religious beliefs and practices. After failed attempts to revive the consultation process and reach agreement, the government declared that reasonable consultation had occurred and approved the project.
Section 2(a) Breach
To establish an infringement of the right to freedom of religion, two steps must be met. First, the claimant must demonstrate a sincere belief in a practice or belief that has a nexus with religion; second, that the impugned state conduct interferes, in a manner that is non-trivial, with their ability to act in accordance with that practice or belief.
The Court clarified that in respect to s. 2(a) claims, the Ktunaxa stand in the same position as non-Aboriginal litigants. The communal aspects of freedom of religion do not, and should not, extend protection beyond the freedom to have beliefs and freedom to manifest them. The state’s duty in ensuring freedom of religion does not extend to protection of the object of beliefs or the spiritual focal point of worship, but to protect everyone’s freedom to hold such beliefs and manifest them in worship and practice, or by teaching and dissemination.
This was a novel claim, which fell beyond the scope of s. 2(a). The band was seeking to protect the presence of the Grizzly Bear Spirit itself, and the subjective spiritual meaning they derived from it, which failed to meet the second step of the test. The Court therefore concluded that approval of the ski resort did not breach the band’s religious freedom.
Duty to Consult
The Court also found that the government fulfilled its duty to consult under s. 35. The band played an active part in all phases of the lengthy regulatory process leading to the approval of the resort process.
The decision clarified that the obligation to consult and accommodate is a right to a process, not a particular outcome. It does not give unsatisfied claimants a veto over development. Where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group.
The group is called on to facilitate the process of consultation and accommodation by setting out its claims clearly and as early as possible. There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible. While the goal of the process is reconciliation of the Aboriginal and state interests, in some cases this may not be possible. The process is one of “give and take”, and the outcomes are not guaranteed. The ultimate obligation is that the Crown act honourably.
Justices Moldaver and Cote agreed with the majority’s conclusions, however disagreed with the majority’s analysis and conclusion surrounding s. 2(a). It was their opinion 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.” They do however agree that the Minister’s decision was reasonable, limiting Ktunaxa’s right “as little as reasonably possible”, resulting in proportionate balancing of Charter rights and statutory objectives to administer Crown land and dispose of it in the public interest.