Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54

On November 2, 2017 the Supreme Court of Canada (“Court”) released its decision in Ktunaxa Nation v British Columbia. The case focused on whether the British Columbia Minister of Forests, Lands and Natural Resource Operations ( “Minister”) erred in approving a ski resort development, despite claims by the Ktunaxa Nation that the Jumbo Glacier ski resort would breach their constitutional right to freedom of religion and to protection of Aboriginal interests under s. 35 of the Constitution Act, 1982. The Ktunaxa Nation also claimed that the approval breached the Crown’s duty to consult and accommodate. The Court rejected both claims. The decision marks the first time the Court has considered the connection between the spiritual beliefs of a First Nation and the ability to protect its territory based on those beliefs.

The proponent’s planned development in the Jumbo Valley is in the heart of Qat’muk, which is a unique and sacred place for Ktunaxa and the Grizzly Bear Spirit. The Ktunaxa argued that the vitality of their religious community depends on maintaining the presence of Grizzly Bear Spirit in Qat’muk. They took the position that the Minister’s decision to allow the ski resort project to proceed violated their right to freedom of conscience and religion protected by section 2(a) of the Charter.

A majority of the Court ruled that the Minister’s decision to allow the ski resort to proceed did not violate the Ktunaxa Nation’s section 2(a) Charter right to freedom of religion as the Ktunaxa’s claim did not fall within the scope of section 2(a). To establish an infringement of the right to freedom of religion, the Ktunaxa Nation was required to 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. On these points, the Court agreed that the Ktunaxa Nation sincerely believed in the existence and importance of the Grizzly Bear Spirit and that permanent development in Qat’muk would drive the Grizzly Bear Spirit from Qat’muk.

The majority of the Court determined that the second part of the test had not been met. They differentiated between seeking to protect the freedom to believe in Grizzly Bear Spirit and pursuing practices related to it on the one hand, and seeking to protect the presence of Grizzly Bear Spirit itself on the other. The majority stated, “the state’s duty under section 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” [para 71]. Therefore, the majority determined that this claim did not fall within the scope of section 2(a) of the Charter because neither the Ktunaxa’s freedom to hold their belief nor their freedom to express those beliefs is infringed by the Minister’s decision to approve the Jumbo Glacier ski resort.

The minority accepted the Ktunaxa Nation’s argument that BC’s conduct in this case interfered with the beliefs and practices associated with Grizzly Bear Spirit in a non-trivial way. They found that the spiritual realm in the Indigenous context is inextricably linked to the physical world, therefore for Indigenous religions, state action that impacts land can sever the connection to the divine, which renders beliefs and practices devoid of their spiritual significance. However, the minority concluded that the resort approval was ultimately reasonable. They held that accepting the Ktunaxa Nation’s claim that no permanent structures should be built in Qat’muk would have effectively transferred the public’s control of the use of over fifty square kilometres of Crown land to the Ktunaxa, and would not have been consistent with the Minister’s responsibility to manage those lands.

The Court unanimously held that the Crown had met its duty to consult and accommodate under section 35 of the Constitution Act in relation to the resort approval. In making this determination, the Court placed significant emphasis on the fact that deep consultation had taken place over the course of two decades. The Court highlighted a number of changes that had been made to the project to accommodate the Ktunaxa’s spiritual claims.

The Court’s reasoning appears to have been influenced by these factors:

• The consultation process and the negotiation of accommodations – including economic accommodations – seemed to be progressing well until at a late stage when, in 2009, the Ktunaxa Nation took the position that no development in area was acceptable.
• As part of its approval, Crown reduced project footprint significantly and introduced additional measures to reduce disturbances to the grizzly bear population.
• Ktunaxa seeking a declaration that Qat’muk (the project area) was sacred and a declaration prohibiting any permanent construction there
• The other affected Aboriginal Nation supported the ski resort.

The Ktunaxa decision signals that the Court will be reluctant to overturn Crown approvals where there has been a deep consultation process and where significant accommodations have been developed, and that the duty to consult and accommodate is more focussed on procedural protections than on evaluating the outcomes of consultation. It confirms the limited value of the consultation and accommodation framework in providing even interim substantive protection to asserted and established section 35 rights.