Today the Supreme Court of Canada released a much awaited decision regarding a challenge to a proposed ski-hill resort on the basis that approving the project will desecrate a sacred place, irreversibly harming the religious beliefs of the Ktunaxa people. The Ktunaxa claimed that by approving the project the BC government violated the guarantee of religious freedom in section 2(a) of the Charter and the Crown’s duty to consult and accommodate under section 35 of the Constitution Act, 1982.
The Supreme Court of Canada dismissed the Ktunaxa’s appeal, allowing the government’s decision to approve the resort to stand. The court found that religious freedom under section 2(a) does not include protection of the objects of the religion, such as sacred places. The court found that the government’s consultation was adequate to uphold the duty to consult under section 35 and there was no requirement for the Ktunaxa’s consent to the project.
This case suggests that section 2(a) of the Charter will not protect sacred places and Indigenous religious beliefs connected to land. It also emphasizes that the duty to consult on impacts to Aboriginal rights under section 35 does not require that the consent of Indigenous peoples be given before a project can proceed. Finally, it has important implications for the process of consultation and challenges to that process. It makes clear that Indigenous peoples should clearly identifying concerns early in consultation and, that if they want to stop the project from going ahead at all, the necessity of proving their rights in a trial instead of through a judicial review of a government decision.
Background
This case was brought by the Ktunaxa Nation Council, which represents four communities in Canada: ʔakisq̓nuk First Nation, ʔakink̓umǂasnuqǂiʔit, ʔaq̓am, and yaqan nuykiy, located near Windermere, Grasmere, Creston and Cranbrook in the interior of BC. The case is a about a proposed development in an area that the Ktunaxa call Qat’muk, located in the Jumbo Valley, 55 kilometres west of Invermere, BC, in Ktunaxa traditional territory. The area has deep spiritual significance for the Ktunaxa, who believe it is inhabited by Kǂawǂa Tukǂuǂaʔis, the Grizzly Bear Spirit. It was undisputed in this case that the Grizzly Bear Spirit is central to Ktunaxa religious beliefs.
Glacier Resorts Ltd. wants to build a year-round ski resort in the area with ski lifts and overnight accommodations. The BC Government conducted consultation with the Ktunaxa, the Shuswap and the public on the proposed resort, which began in 1991 and ended in 2011. Glacier modified the project in various ways to try and accommodate the Ktunaxa’s concerns including moving components of the resort and reducing its overall size. The Ktunaxa raised concerns about the cultural values and significance of the Qat’muk area throughout the consultation, but it was not until 2009 that they took the specific position that any permanent structures in the area would harm the Grizzly Bear Spirit. If the resort proceeded, this sacred site of Qat’muk would be desecrated and cause Grizzly Bear Spirit to leave, severing the Ktunaxa’s connection to the land and making their religious beliefs and practices meaningless. The Ktunaxa advised the province that no accommodation was possible to protect their spiritual values other than denying the approval of the project. This information had not been revealed earlier due to the ill health of the elder who held the most knowledge of these values and his concerns that information about Ktunaxa spiritual beliefs was meant to be kept secret. When no agreement on the resort could be reached, the government determined its consultation process was reasonable and approved a Master Development Agreement allowing the project to proceed in 2012.
The Ktunaxa brought a judicial review of the decision by the Minister of Forests, Lands and Natural Resources on the basis that (1) the project infringed their right to freedom of religion under section 2(a) of the Charterand (2) the government breached the duty to consult under section 35 of the Constitution Act, 1982. The British Columbia Supreme Court dismissed the Ktunaxa’s application and the British Columbia Court of Appeal upheld that decision. The Ktunaxa appealed to the Supreme Court of Canada.
Majority Decision
That the Ktunaxa’s religious beliefs were deeply held and sincere was not disputed in this case. The majority seven judges of the court made clear that it makes no difference to the protection given under section 2(a) whether religious beliefs are ancient, “traditional” beliefs, or new, modern beliefs. However, the majority of the Court found that the Ktunaxa’s section 2(a) rights were not violated by the development because their claim does not fall within the scope of section 2(a). Section 2(a) protects the right to hold beliefs and the freedom to practice them. In the majority’s view, section 2(a) cannot be extended to protect the object of the beliefs, such as sacred sites or the presence of the Grizzly Bear Spirit. In the court’s view, approval of the ski resort does not prevent the Ktunaxa from holding their beliefs or practicing their religion and therefore does not violate section 2(a).
The court also found government fulfilled its duty to consult under section 35. The government engaged in deep consultation, the process was sufficient and took into account the Ktunaxa’s concerns, including by proposing various accommodations. The majority emphasized that the Ktunaxa had participated in the consultation process throughout, and the project had been modified as the result of consultation. The court held that the duty to consult guarantees a process but not a particular result. There is no guarantee that the specific accommodation requested by an Indigenous group will be warranted or even possible. The court concluded that the ultimate obligation on the Crown is to act honourably and made clear that where consultation has been adequate, a development may proceed without consent. While reconciliation is the goal of consultation, the court said, in some cases reconciliation may not be possible.
The court also commented that the Ktunaxa’s request for a declaration that Qat’muk is sacred and permanent construction is banned was a request for the court to decide the validity of their claim to a sacred site, something the court said it cannot do on a judicial review. Aboriginal rights must be proven in a full trial, with the benefit of pleadings, discovery, evidence and submissions, and not as part of judicial review proceedings examining the adequacy of consultation.
Minority Reasons
Justices Coté and Moldaver agreed with the majority reasons with respect to the duty to consult under section 35, but disagreed with their analysis o n the section 2(a) right to freedom of religion. These two judges found that the Ktunaxa’s section 2(a) rights are violated because the development would deprive their religious beliefs and practices of meaning. This is an interference with their rights that is more than trivial or insubstantial. However, they also found that the Minister’s decision was reasonable because it reflects a proportionate balancing of the s. 2(a) Charter right and the Minister’s statutory objectives to administer Crown land and dispose of it in the public interest. Balancing requires that the Charter rights be affected as little as reasonably possible in light of the state’s objectives. While the Minister’s decision did not refer to s. 2(a) of the Charter, the minority held it is clear he was aware of the substance of the Ktunaxa’s 2(a) right – that the development would interfere with their spiritual connection to the Grizzly Bear Spirit. The Minister provided significant accommodation and was left with the choice to either approve the development or give the Ktunaxa a veto over development in the area. In the minority’s view, a veto would convey a significant property right – the power to exclude others from building private structures on public land – and this would not be consistent with the Minister’s statutory mandate.
Impact of the Case
On the whole, this case has concerning implications for Indigenous peoples seeking to protect their spiritual and religious rights and for the content of the duty to consult.
With respect to the protection of religious freedom of Indigenous peoples under section 2(a), this case makes clear that the religious beliefs of Indigenous peoples receive the same protections as non-Indigenous Canadians in the sense that they do not have to be pre-Contact, traditional beliefs. Religious and spiritual beliefs that have recently developed will be protected under section 2(a) as long as they are sincerely held. However, this case suggests that Indigenous spiritual beliefs connected to land will be difficult to protect from development, as the court held that protection of the object of spiritual beliefs (such as spiritual or sacred places) is not within the scope of section 2(a). it remains to be seen in future cases whether Aboriginal rights claims under section 35 might provide better protection, provided the religious or spiritual belief is a distinct part of the Indigenous culture that has continuity with beliefs or practices prior to contact.
On the duty to consult, this case sends a strong message to Indigenous peoples that claims and concerns should be identified early in the process and defined as clearly as possible. This presents a challenge to Indigenous communities as this may conflict with Indigenous laws or values around protecting the secrecy of certain spiritual beliefs and practices. It may also be difficult for the leadership of Indigenous communities to identify claims early in consultation with government when the relevant knowledge is held only by certain members of the community. Finally, it may be hard in an atmosphere of mistrust between Indigenous peoples and proponents or government agencies for Indigenous peoples to feel comfortable revealing detailed information about sacred sites, beliefs and religious practices. Sacred sites and burial places for example, are sometimes vandalized or looted when publically identified.
The court in this case also showed a strong preference for compromise and a discomfort with absolute positions. It reinforced the principle that Indigenous peoples have “no veto” over development and suggests that refusals to consider accommodations will not be well-received by courts. The court’s statements on consent make clear that, where rights are not yet established, consent is not required as part of fulfilling the duty to consult. This falls short of Canada’s commitment under Articles 19 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples to consult with Indigenous peoples in order obtain free, prior and informed consent and underlines the limits of the duty to consult as a route to blocking government decisions. It highlights the importance of having a strategy in place in the early stages of any consultation process and having in mind what kind of negotiated solution, if any, might resolve an Indigenous community’s concerns. This case sends that message that if the true goal is to stop a project altogether the only real option is to pursue a declaration of rights in a trial. The court made clear it is not willing to determine the existence or scope of rights in a judicial review. However, even where Aboriginal rights are established, this case suggests courts will first look to compromise and agreement as a means of resolving issues and will be hesitant to block projects altogether in favour of Aboriginal rights.