Canada: Ktunaxa Nation: The Supreme Court Returns To Haida First Principles In Dismissal Of Ski Hill Duty-To-Consult Case

Supreme Court of Canada (the "Court") has rejected Crown consultation and spiritual-rights challenges brought by the Ktunaxa Nation (the "Ktunaxa") against a proposed ski resort in B.C.'s Jumbo Valley area following a two-decade regulatory review process.

In its November 2, 2017 decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations),1 the Court returns to the core consultation principles set out in its leading 2004 decision in Haida2 and reinforced in its Chippewas3 and Clyde River4 decisions released earlier this year. The Court also rejects novel arguments raised by the Ktunaxa under the freedom of religion guarantee in section 2(a) of the Canadian Charter of Rights and Freedoms ("Charter").

With Ktunaxa completing its 2017 Aboriginal consultation "trilogy," the Court appears to be moving toward a more stable conception of the duty to consult—adding a welcome measure of certainty to this complex and contentious area of the law.

Regulatory Review of the Resort and Consultation Deadlock

Ktunaxa concerns a year-round ski resort first proposed by Glacier Resorts Ltd. ("Glacier") in 1991 in the Jumbo Valley area of Eastern British Columbia (the "Resort"). The Resort's lengthy regulatory review process consisted of the following stages:

  1. Hearings in 1991 under the Commercial Alpine Ski Policy to determine Glacier's status as sole proponent;
  2. Hearings in 1993–1995 under a B.C. Commission on Resources and the Environment process to develop a new land-use plan for the region;
  3. A B.C. environmental assessment review, which lasted from 1995 to 2004; and
  4. The development of a resort Master Plan and Master Development Agreement between 2005 and 2012.

Both the Ktunaxa and the Shuswap Nation Tribal Council (the "Shuswap") participated in the regulatory review process for the Resort and parallel consultations with the Minister of Forests, Lands and Natural Resource Operations ("Minister").

The Ktunaxa claimed that the Resort would be built in "Qat'muk," a place home to both a significant grizzly bear population and to the Grizzly Bear Spirit, accepted by the Court (and the parties) as "a principal spirit within Ktunaxa religious beliefs and cosmology." In the 2000s, the Ktunaxa successfully negotiated with the Minister to reduce the size, and alter the location, of the Resort to avoid grizzly bear habitation or visitation sites, and had been actively seeking an Impact Benefit Agreement ("IBA") and compensation in relation to the Resort.

The Shuswap entered into IBAs in 2008 and 2009. While the Ktunaxa appeared to be close to reaching similar arrangements, in June 2009 it adopted what the Court called "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." Following further, failed attempts to revive negotiations, the Minister approved a Master Development Agreement ("MDA") with Glacier in 2012.

The Ktunaxa challenged the MDA's approval by way of judicial review. In 2014, the B.C. Supreme Court dismissed the Ktunaxa's petition, and in 2015 the B.C. Court of Appeal upheld that dismissal.

The religious freedom claim

Before the Supreme Court of Canada and the lower courts, the Ktunaxa argued that the Resort's approval violated the freedom of religion guarantee in section 2(a) of the Charter by authorizing steps that would drive the Grizzly Bear Spirit from its ancestral homeland.

The Court split on the question of whether section 2(a) was engaged. Chief Justice McLachlin and Justice Rowe, for the majority, held that the Charter protected only the freedom to believe or manifest one's belief, not "the focal point of worship" (such as the Grizzly Bear Spirit) itself. In a concurring opinion, Justices Moldaver and Côté found section 2(a) infringed, but would have upheld the Minister's decision as a reasonable balancing of the spiritual right with public-interest objectives.

The consultation claim

Against the Ktunaxa's claims of inadequate consultation, the Court unanimously upheld the Minister's conclusions that an adequate process had taken place.

Reviewing the record, including a "Rationale" document setting out the Minister's reasons, the Court found that the Ktunaxa was not correct to allege that the Minister had mischaracterized and misunderstood either its asserted spiritual rights or the Resort's impacts on those rights. The Court held that "deep consultation" had occurred on the spiritual claim, adding that "[e]ven after the Ktunaxa said further consultation was pointless, the Minister persisted in attempts to consult."

The Court also found that "many accommodations were made" with respect to spiritual concerns, including to protect grizzly populations, create environmental reserves and establish monitoring. The Court disagreed with the suggestion that a "complete rejection" of the Resort was required:

It is true, of course, that the Minister did not offer the ultimate accommodation demanded by the Ktunaxa—complete rejection of the ski resort project. It does not follow, however, that the Crown failed to meet its obligation to consult and accommodate. The s. 35 right to consultation and accommodation is a right to a process, not a right to a particular outcome: Haida Nation. While the goal of the process is reconciliation of the Aboriginal and state interest, in some cases this may not be possible. The process is one of "give and take," and outcomes are not guaranteed.

Analysis: affirming the Haida framework

Similarly to its July 2017 decision in Chippewas (a case heard, along with Clyde River, in the same week), the Court in Ktunaxa was confronted with arguable overreach by the consultation claimant. In particular, both cases feature attempts to dismantle consultation-adequacy determinations through attacks on the technical features of the assessor's reasons (such as alleged mischaracterizations or departures from a formal Haida decision-making rubric) despite abundant evidence of a substantive consultation process. In both Chippewas and Ktunaxa, that process was utilized at multiple points of engagement by the Aboriginal group; yielded tangible accommodations; and was reflected in a detailed record and reasons that—if imperfect—dealt specifically and directly with Aboriginal concerns about project impacts on their rights and interests.

More starkly, Ktunaxa featured a 20-year regulatory process that, notwithstanding significant proponent modifications in response to the Ktunaxa's concerns, concluded with what the Court observed as a late and "uncompromising" Ktunaxa declaration that no accommodation was possible.

Unsurprisingly, then, Ktunaxa doubles down on Haida's message that Aboriginal groups do not, within their right to be consulted, have a "veto" on development:

The s. 35 obligation to consult and accommodate regarding unproven claims is a right to a process, not to a particular outcome. The question is not whether the Ktunaxa obtained the outcome they sought, but whether the process is consistent with the honour of the Crown. While the hope is always that s. 35 consultation will lead to agreement and reconciliation of the Aboriginal and non-Aboriginal interests, Haida Nation makes clear that in some situations this may not occur, and that s. 35 does not give unsatisfied claimants a veto over development. Where adequate consultation has occurred, a development may proceed without the consent of the Aboriginal group. [emphasis added]

Apart from these comments' pertinence to ongoing debates about the role of "free, prior and informed consent" (or FPIC) in the context of Canada's endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, this aspect of Ktunaxa also resolves any doubt as to the correct interpretation of 2014's landmark Tsilhqot'in decision.5

In Tsilhqot'in, the Chief Justice had remarked (albeit in obiter) that "if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing,"6 and otherwise suggested that charges of inadequate consultation could be avoided by obtaining consent.7 These comments, together with widespread FPIC debate in academia and the media, suggested to some that a "de facto consent" consultation standard had been adopted.

Ktunaxa appears to have put these interpretations of Tsilhqot'in—a case mentioned only once in the decision—to rest. The 2017 consultation trilogy finds the Court confirming that the emphasis should be on the consultation process, not specific consultation outcomes.

In stressing these Haida first principles, and in refusing the novel Charter remedy sought by the appellants, the Court appears to be signalling that good-faith, "give or take" negotiation—not brinkmanship or litigation—remains the preferred mechanism for resolving disputes over development.

Footnotes

1. 2017 SCC 54.

2. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.

3. Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41.

4. Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40.

5. Tsilhqot'in Nation v British Columbia, 2014 SCC 44.

6. Ibid at para 92.

7. Ibid at para 97.

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