On November 2, the Supreme Court of Canada released its decision in Ktunaxa Nation v British Columbia, involving the Ktunaxa Nation’s opposition to the Jumbo Valley ski resort, on the basis the project violated the Ktunaxa’s right to freedom of religion under s. 2(a) of the Charter and was approved without adequate consultation and accommodation under s. 35 of the Constitution Act, 1982.
The court unanimously held that the provincial minister’s s. 35 duty to consult and accommodate was met, but disagreed on whether the Ktunaxa’s spiritual beliefs were within the scope of s. 2(a) protection.
The majority of the court declined to expand the scope of s. 2(a) to protect the “object of beliefs” or the “spiritual focal point of worship.” Rather, the majority emphasized that the state’s duty is to protect the freedom to hold and manifest those beliefs.
The decision raises two points about timing: first, it suggests the timing of asserting an Aboriginal right may be relevant when considering the veracity of the claim for the purpose of assessing the required level of consultation; and second, it emphasizes the continued challenges governments and proponents face when dealing with protracted consultation processes.
Glacier Resorts Ltd. received approval for its proposed year-round ski resort in BC’s Jumbo Valley (an area the Ktunaxa Nation refers to as “Qat’muk,” the home of the Grizzly Bear Spirit, a central figure in the Ktunaxa’s religious beliefs and practices) from the BC Minister of Forests, Lands and Natural Resource Operations (the Minister) in 2012, after two decades of negotiation and consultation.
At the BC Supreme Court, the Ktunaxa sought judicial review on the grounds that the Minister’s approval violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter and the Crown had not met its duty to consult and accommodate under s. 35 of the Constitution Act, 1982.1 The chambers judge dismissed the s. 2(a) claim on the basis that a subjective loss of meaning that results from a development cannot infringe s. 2(a) without an associated coercion or constraint on religious conduct. The chambers judge further found the consultation process undertaken by the Minister was sufficient and determined that the accommodations proposed fell within the range of reasonable responses to satisfy the Crown’s duty to consult and accommodate under s. 35.
On appeal, the BC Court of Appeal upheld the chamber judge’s finding that the Minister had fulfilled the Crown’s duties under s. 35, but found the chambers judge had taken too narrow a view regarding the scope of s. 2(a) protection.2 The Court of Appeal nevertheless held that s. 2(a) could not be invoked to require others who do not share a religious belief system to modify their behaviour.
Supreme Court of Canada’s decision
At the Supreme Court of Canada, McLachlin C.J. and Rowe J., writing for the majority, dispensed with the Ktunaxa’s s. 2(a) claim on the basis that the Ktunaxa failed to “show that the Minister’s decision to approve the development interferes either with the freedom to believe in the Grizzly Bear Spirit or their freedom to manifest that belief.”3 The majority interpreted the Ktunaxa’s claim as asking the court to expand the scope of s. 2(a) protection to “protect the object of beliefs” (i.e., Grizzly Bear Spirit) and “the spiritual focal point of worship.” Expanding the scope of s. 2(a) in that manner would make courts the adjudicator of the content, merits and value of subjective religious beliefs.
In their concurring opinion, Moldaver and Coté JJ. disagreed on the scope of s. 2(a) protections. They held that the Minister’s decision violated the Ktunaxa’s rights under s. 2(a) because it effectively rendered their “beliefs and practices devoid of [any] spiritual significance.”4 However, Moldaver and Coté JJ. ultimately found that the Minister’s decision to approve the resort was reasonable as it was reflective of a proportionate balancing of the Ktunaxa’s religious beliefs and the Minister’s statutory objective of “administer[ing] Crown land and [disposing] of it in the public interest.”5
In its reasons, the majority summarized the consultation processes the Ktunaxa had participated in between 1991 and 2012, which supported the province’s position that consultation was proceeding towards a mutually acceptable outcome:
the Ktunaxa did not seek judicial review of the conditional Environmental Assessment Certificate which was issued in 2004;
the Minister offered, and the Ktunaxa accepted and participated in, additional consultations during the consideration of the resort’s master plan in December 2005 to July 2007; and
the Ktunaxa did not assert that any development in Qat’muk would destroy the valley’s spiritual value until September 2009.
The majority also emphasized the fact that significant modifications were made to the resort’s Master Development Agreement in an effort to accommodate the Ktunaxa’s assertion of Qat’muk’s spiritual value, and the Ktunaxa’s refusal to engage in consultations beginning in 2010.
In reasoning that the Crown’s duty to consult and accommodate had been fulfilled, the majority repeatedly stated that, “Section 35 guarantees a process, not a particular result. The Aboriginal group is called on to facilitate the process of consultation and accommodation by setting out its claims clearly…and as early as possible.”6
The majority acknowledged that consultation and accommodation may be imperfect but are the best tools available “in the difficult period between claim assertion and claim resolution.”7 The potential for injunctive relief was noted, but was promptly followed by the statement that, while claims remain unresolved, “a fair and respectful process and work[ing] in good faith toward[s] reconciliation” may be the best possible outcome.8
Importance of decision
While the majority ultimately concluded that the right of religious freedom was not infringed in this instance, the Supreme Court’s decision in Ktunaxa Nation (particularly the reasoning of Moldaver and Coté JJ.) arguably invites claims previously based on s. 35 to be recast as a s. 2(a) violation where the Aboriginal right in issue is predicated on spiritual beliefs and practices. While the concurring judgment could be an indication that satisfaction of the duty to consult and accommodate is reflective of a proportionate balancing of an Indigenous group’s s. 2(a) rights, the analyses were kept separate in both the majority and minority judgments, making it unclear to what extent one may subsume the other.
This decision is also a powerful restatement of the principle that the duty to consult does not guarantee a particular outcome and does not bestow affected Indigenous groups with a veto right; it only guarantees a process. That said, the majority’s decision was, to some extent, informed by international law concepts regarding the protection of religious beliefs. Such reliance on international concepts, including those emanating from international instruments to which Canada is not a signatory, may speak to a greater willingness by the court to look outside of Canada’s constitution to adjudicate rights, including Aboriginal rights. This arguably could extend to the concept of ”free, prior and informed consent” under the United Nations Declaration on the Rights of Indigenous People, although the concept seems strictly at odds with the court’s clear statement that, “Where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group.”9
Lastly, while the decision affirmed that the development of the project can now proceed, it should be remembered that the regulatory approval process and associated litigation for the Jumbo Valley ski resort has spanned over 20 years, emphasizing the need for government and industry to reflect on the approach to consultation, and to avoid embarking on lengthy and uncertain processes that can create challenging environments for economic investment.
1 2014 BCSC 568.
2 2015 BCCA 352.
3 Para. 70.
4 Para. 127.
5 Para. 154.
6 Para. 79.
7 Para. 86.
8 Para. 86.
9 Para. 83.