Canada: Supreme Court Rejects First Nation's Spiritual Objection To Ski Resort

On November 2, 2017, the Supreme Court of Canada (SCC) ruled in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) that a decision to approve the Jumbo Glacier Resort did not violate the Ktunaxa Nation's (Ktunaxa) right to freedom of religion and did not breach the Crown's duty to consult. The decision focuses on the reciprocal obligations of aboriginal groups in the consultation process and the bounds of accommodation.

BACKGROUND

The decision relates to a proposal for a year-round ski resort in southeastern British Columbia. Beginning in 1991, Glacier Resorts Ltd. (Glacier Resorts) underwent multiple regulatory review processes regarding the development of the Jumbo Glacier Resort. Over a period of 20 years, Glacier Resorts and the Crown consulted with the Ktunaxa and the Shuswap peoples (Shuswap) regarding the project's development. Ktunaxa participated in public consultations, were extensively involved in the environmental assessment process, and began negotiations for an accommodation and benefits agreement. Ktunaxa was also granted capacity funding to facilitate its participation in the regulatory and consultation processes. Shuswap parted ways with the Ktunaxa and expressed their support for the project in 2004.

The site of the ski resort is within an area of spiritual significance to the Ktunaxa Nation because they believe in the existence and importance of the Grizzly Bear Spirit in the area of the proposed resort project.

In June 2009, the provincial Minister of Environment (Minister) advised the Ktunaxa that, in his opinion, a reasonable consultation process had occurred and significant accommodation of the Ktunaxa's spiritual concerns had been made. Accommodations included a 60 per cent reduction in the controlled recreation area of the resort, the removal of areas critical to grizzly bear habitat and visitation from the resort area, and a commitment to pursuing a wildlife management area to address potential impacts in relation to grizzly bears and aboriginal claims relating to the spiritual value of the valley. An agreement on accommodation seemed likely.

One week later, "the Ktunaxa adopted an uncompromising position—that accommodation was impossible because a ski resort with lifts to glacier runs and permanent structures would drive Grizzly Bear Spirit from Qat'muk and irrevocably impair their religious beliefs and practices."

The Minister engaged in "fruitless efforts to revive the consultation process," but was unsuccessful. The Minister declared that reasonable consultation had occurred and approved the project, despite the Ktunaxa's opposition. The Ktunaxa sought judicial review of the Minister's decision, contending that the decision violated their section 2(a) Charter right to freedom of religion and the section 35 constitutional right to consultation and accommodation. The British Columbia Supreme Court and Court of Appeal both denied the relief sought by the Ktunaxa.

SCC DECISION

The SCC dismissed the appeal in two concurring decisions. The SCC unanimously concluded that the Minister's decision that the Crown had met its duty to consult and accommodate under section 35 of the Constitution Act, 1982 was reasonable. Seven justices found that the Minister's decision did not violate the Ktunaxa's right to freedom of religion, while two other justices concluded the violation is saved by the balancing process under section 1 of the Charter.

Duty to Consult

Both decisions concluded that the Minister's decision that consultation and accommodation had been sufficient to satisfy section 35 was reasonable. The record demonstrated that the Ktunaxa spiritual claims had been acknowledged from the outset, that deep consultation had taken place, and that many accommodations had been made. However, an accommodation that would not compromise the Minister's statutory mandate to dispose of lands in the public interest was unavailable. "In the end, he found that the fulfillment of his statutory mandate prevented him from giving the Ktunaxa a veto right over the construction of permanent structures on over fifty square kilometres of public land."

The SCC emphasized that the section 35 right to consultation and accommodation is a right to a process, not a right to a particular outcome. While the Crown is obligated to provide notice and information on the project, and to consult with affected aboriginal groups, aboriginal groups have reciprocal obligations to clearly define the elements of their claim early on in the process.

Freedom of Religion

To establish an infringement of the right to freedom of religion, a claimant must prove: that he or she sincerely believes in a practice or belief that has a nexus with religion; and 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.

The lower courts did not question the sincerity of the Ktunaxa's beliefs. However, the majority of the SCC concluded that the Minister's decision to approve the resort had not been shown to interfere with either the Ktunaxa freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. The majority held that the Ktunaxa were not seeking protection for their religious practices; but rather, were seeking to protect the presence of the Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it.

Two justices disagreed. In their view, the proposed resort would render the Ktunaxa's religious beliefs devoid of all religious significance, since any song, rituals or ceremonies in recognition of Grizzly Bear Spirit would no longer have any significance if the Grizzly Bear Spirit departed. However, the infringement was saved under section 1 of the Charter. The Minister had appropriately balanced the Ktunaxa's section 2(a) right with the statutory objectives of administering Crown land and disposing of it in the public interest. The Minister concluded that the fulfilment of his statutory mandate prevent him from giving the Ktunaxa a veto right over the area.

COMMENTARY

It appears that the decision in this case was largely driven by the factual context surrounding the consultation process. The project proponent and provincial Crown had engaged in deep consultation with the Ktunaxa and "[a]t 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 Grizzly Bear Spirit from Qat'muk." It is possible that in a different set of circumstances, a claim to an area on the basis of a spiritual practice or interest may carry more weight.

It is also clear that the majority viewed the appeal as asking the courts to pronounce on the validity of the Ktunaxa's claim to a sacred site and associated spiritual practices within the context of judicial review. The SCC emphasized that proof of aboriginal rights requires a full evidentiary record and "cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation." The SCC also stated that the late aspect of the Ktunaxa claim "seemed designed to require a particular accommodation rather than to assert and support a particular pre-contact practice, custom, or tradition that took place on the territory in question."

Despite this ruling, the resort has not been cleared to proceed. Under its environmental assessment certificate, Glacier Resorts was required to substantially start its project within five years of the date of its certificate. In 2015, the provincial Minister of the Environment ruled that the Jumbo Glacier Resort project had not been substantially started by this deadline. As a result, the project's certificate expired and a new environmental assessment will be required. Glacier Resorts has filed a petition disputing that decision on the basis that it was made with incomplete and incorrect information. That petition is pending before the courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
6 Sep 2018, Seminar, Toronto, Canada

Blakes invites you to attend a seminar focused on successfully managing high-stakes litigation and arbitration. An esteemed client panel consisting of Erica Young (Executive Vice President, Regulatory and Chief Legal Officer, ENMAX)

12 Sep 2018, Seminar, Calgary, Canada

Blakes invites you to attend a seminar focused on the development and implementation of effective intellectual property strategies in the oil and gas sector.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions