Canada: SCC: Approval To Develop Ski Resort On Sacred Lands Does Not Unlawfully Infringe Ktunaxa's Rights

In Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), the Supreme Court of Canada held that the British Columbia Minister of Forests, Lands and Natural Resource Operations (Minister) did not err in approving a ski resort development, despite claims by the Ktunaxa that the development would breach their constitutional right to freedom of religion and to protection of Aboriginal interests under section 35 of the Constitution Act, 1982.1 The Ktunaxa applied for judicial review of the Minister's approval decision for a ski resort in Qat'muk, a place of spiritual significance for them, and subsequently appealed the lower Court decisions to the SCC, which released its decision on November 2.

What You Need To Know

  • The SCC dismissed a novel claim by the Ktunaxa that the decision infringed their right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms because of its impact on Qat'muk. A majority of the SCC found that a Crown activity that impacts the object of a religious belief, but that does not interfere with believers' freedom to hold or manifest beliefs, does not violate the Charter.
  • The SCC's decision does not foreclose the possibility that different future claims may result in findings that an approved activity unlawfully infringes the right to freedom of religion under section 2(a) of the Charter.
  • The SCC found that the Minister did not act unreasonably in concluding that the Crown's duty to consult with the Ktunaxa with respect to the proposed development had been met, even though the SCC indicated in its decision that "the Minister did not offer the ultimate accommodation demanded by the Ktunaxa—complete rejection of the ski resort project."
  • The SCC recognized the difficulty of having to make decisions "in the difficult period between claim assertion and claim resolution" under the treaty process. The SCC noted that "[i]njunctive relief to delay the project may be available. Otherwise, the best that can be achieved in the uncertain interim while claims are resolved is to follow a fair and respectful process and work in good faith toward reconciliation." The SCC also noted that "consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket."

Background

Qat'muk, a place of spiritual significance to the Ktunaxa and Shuswap Nations, is located in Jumbo Valley in British Columbia. Qat'muk is home to an important population of grizzly bears and to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs.

Glacier Resorts Ltd. (Glacier Resorts) initiated the regulatory approvals process to build a ski resort in Qat'muk in 1991, and eventually received approval in 2012. During this period, Glacier Resorts negotiated with the B.C. government and the Ktunaxa and Shuswap on terms and conditions for developing the resort.

The Ktunaxa and Shuswap participated in every stage of the approvals process and significant changes were made to the proposed resort. In 2005, the Shuswap declared themselves satisfied with the changes and indicated their support for the proposal given the benefits it would bring to their people and the region. The Ktunaxa were not satisfied, but committed themselves to further consultation and to find mutually satisfactory accommodation.

Ultimately, "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." Further consultation with the Ktunaxa did not yield an agreement and in 2010, the Ktunaxa issued the "Qat'muk Declaration" (a unilateral declaration of rights based on "pre-existing sovereignty" and mapped an area in which the Ktunaxa would not permit development) and took the position that negotiations were over.

The Minister concluded that sufficient consultation had occurred, and in 2012 he signed a master development agreement (MDA) for the proposed development. The MDA contained a number of measures to address issues raised by the Ktunaxa in the consultations, including significantly reducing the scope of the resort plan and implementing safeguards for the grizzly bear population and the spiritual interests of the Ktunaxa.

The Ktunaxa sought judicial review of the Minister's decision, claiming the decision violated their right to freedom of religion under section 2(a) of the Charter, and that it also violated the Crown's duty to consult under section 35 of the Constitution Act, 1982. The claim regarding religious freedom was asserted independently of the section 35 claim.

In arriving at its conclusions, the SCC indicated that it is "cognizant of the importance of protecting Indigenous religious beliefs and practices, and the place of such protection in achieving reconciliation between Indigenous peoples and non-Indigenous communities."

The Chief Justice and Justice Rowe, writing for seven members of the SCC, rejected the Ktunaxa's claim that the Minister's decision infringed their right to religious freedom. The SCC found the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit at Qat'muk; however, the Minister's decision did not interfere with their freedom to hold or manifest that belief. More specifically, the majority of the SCC indicated:

In this case, however, the appellants [i.e., the Ktunaxa] are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. That claim is beyond the scope of s. 2(a).

Thus, the majority of the SCC held that the Minister's decision did not infringe the Ktunaxa's right to freedom of religion under section 2(a) of the Charter.

In contrast, Justices Moldaver and Côté; found the Ktunaxa's right to freedom of religion was infringed by the Minister's decision. They found that in many Indigenous religions, land itself can be sacred and state action that impacts land can "sever the connection to the divine," undercutting the spiritual significance of beliefs. However, these two Justices concluded the Minister's decision proportionately balanced the Ktunaxa's right to freedom of religion with the relevant statutory objectives: to administer Crown land and dispose of it in the public interest. Thus, these two Justices found no unlawful infringement under section 2(a) of the Charter.

The SCC provided a good summary of the relevant principles regarding the duty to consult and accommodate, including noting that "Section 35 guarantees a process, not a particular result.... There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible. The ultimate obligation is that the Crown act honourably." The Court reaffirmed that consultation need not continue when it is clear such consultation would be fruitless, nor does section 35 provide a veto to unsatisfied claimants. The SCC found the Minister's conclusion that consultation with the Ktunaxa in respect of the proposed development was reasonable, because, among other things, the Ktunaxa spiritual claims to Qat'muk had been acknowledged from the outset, negotiations spanned two decades, deep consultation had taken place, and many changes had been made to the project to accommodate the Ktunaxa's spiritual claims.

The SCC's decision addressed the Ktunaxa's argument that they must have relief now before development causes Grizzly Bear Spirit to flee Qat'muk before they prove their claim or establish it under the treaty process. The SCC noted the solution is not for courts to make far-reaching constitutional declarations in the course of judicial review proceedings, which are ill-equipped to determine Aboriginal rights and title claims. After mentioning the potential for injunctive relief to delay the project, the SCC noted the best that can be achieved in the uncertain interim while claims are resolved is to follow a fair and respectful process and work in good faith toward reconciliation. In most cases, this should lead to agreement and reconciliation, according to the SCC. Where an agreement is not reached, mitigating potential adverse impacts on the asserted right ultimately requires resolving questions about the existence and scope of unsettled claims as expeditiously as possible. In the difficult period between claim assertion and claim resolution, the SCC indicated that consultation and accommodation are the best available legal tools in the reconciliation basket.

Footnotes

1See: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do.

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