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.
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.
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.
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