Canada: First Nation Challenge Based On Spiritual Interests Rejected In Jumbo Case

With respect to the Ktunaxa Nation's asserted spiritual interests in the area (referred to as Qat'muk), the Consultation/Accommodation Summary notes how the Crown has endeavored to honourably give consideration to those interests, while at the same time applying the tests for determination of aboriginal rights as set out in relevant case law. In this regard, the Consultation/Accommodation Summary states at pages 49-51:

It is... not clear whether any of these values can take the shape of a constitutionally protected aboriginal right or whether such a claimed right can be reconciled with other claimed aboriginal rights and Ktunaxa access to the valley for a variety of traditional and modem uses, including hunting, gathering and fishing. The Ministry's challenge is to give due respect and recognition to this sensitive spiritual information, which has been provided by the Knowledge Keepers in a trusting way, and at the same time, assess it in the context of the Crown's consultation and accommodation obligations in respect of aboriginal rights recognized by section 35 [of the] Constitution Act 1982....³

The [Ministry] sincerely recognizes the genuinely sacred values at stake for Ktunaxa leadership and the Knowledge Keepers in particular, however it has determined on a preliminary basis that a prima facie claim to an aboriginal right of this nature is weak. In particular, there is no indication that valley would have been under threat from permanent forms of development at the time of contact such that the right claimed would have been one that was exercised or an aboriginal tradition, practice or activity integral to the culture of Ktunaxa. In addition, in the Ministry's view the claim to such a right is weakened where the details of the spiritual interest in the valley have not been shared with or known by the general Ktunaxa population. The Ministry makes these preliminary statements because the nature of the consultation obligation requires it be done, and hopes that no personal or cultural disrespect is perceived. The [Ministry] believes that there is difference in respecting certain personal and spiritual beliefs or values, which the ministry hopes it has done, and then weighing this information in the context of a legal aboriginal rights claim, which the Ministry believes it has done in as respectful a way as possible.⁴

In my opinion, constitutional protection of freedom of religion does not extend to restricting the otherwise lawful use of land, on the basis that such action would result in a loss of meaning to religious practices carried out elsewhere. That is, the otherwise lawful use of land by others is not a form of coercion or a constraint on freedom of religion which s. 2(a) of the Charter protects.⁵

Regardless of the doctrine of secrecy surrounding Ktunaxa religious practices and beliefs, one would reasonably expect such a staunch position to be articulated at the earliest available opportunity as it strikes at the very heart of the object of the regulatory processes already undertaken.⁷

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The Ktunaxa first elevated their concern for the sacred values in Qat'muk to the principal ground on which they say no accommodation is possible in June 2009. By that time, the Proposed Resort had undergone the CASP review and the CORE review, had been issued an EAC, and had had the MP approved. These processes took over 15 years and involved extensive opportunity for the Ktunaxa to express their concerns regarding the Proposed Resort and efforts were made to accommodate those concerns through changes to the specifications of the Proposed Resort and other measures.⁸

In my opinion, extrinsic evidence that goes to characterising an asserted Charter right is not admissible where it could and should have been placed before the decision-maker tasked with the responsibility of balancing Charter values with statutory objectives. In short, simply characterizing the issue as the infringement of a Charter right in the later stages of the decision-making process does not absolve the party asserting the infringement from the obligation to bring the relevant evidence before the decision-maker.⁹

There is no reason why this information was not provided to the Minister prior to his decision. The sacred nature of the area to the Ktunaxa for spiritual and or religious reasons was squarely before the Minister. It is not open to a party to provide significant expert opinion only after a decision-maker has rendered the impugned decision, and then seek to rely on such opinion to support impugning the decision.¹⁰

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No attempt is made to support many conclusory statements by the collection of data and the application of an ascertainable and objective methodology. As stated in Native Council at para. 25, "there are occasions where the experts go beyond their expertise, become less than objective, and become too closely aligned with their clients' interests". That seems to be the case with the Walker Report.¹¹

The Minister says that when reviewing the procedural aspects of the duty to consult, it is appropriate to consider all these past regulatory processes. I agree.

The case law supports this position...[t]he court found that available, adequate, and accessible regulatory processes which allow First Nations to participate in a meaningful way should be used, and a failure to use such processes does not justify a demand for separate or discrete consultation (at para. 42). In Taku, the Supreme Court of Canada found that participation in an earlier environmental assessment of a project satisfied the Crown's duty to consult and accommodate.¹²