ABORIGINAL LANDS - Duties of the Crown - Consultation and accommodation - Constitutional issues - Canadian Charter of Rights and Freedoms - Freedom of religion

Appeal from a judgment of the British Columbia Court of Appeal affirming a decision dismissing an application for judicial review of a decision of the British Columbia Minister of Forests, Lands and Natural Resource Operations (Minister) to approve a ski resort development. The appellants, the Ktunaxa Nation Council and Teneese (Chair of the Council), represented the Ktunaxa people. The main issue in the appeal was whether the Minister erred in approving the 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 s. 35 of the Constitution Act, 1982. The proposed development was in an area the Ktunaxa called Qat’muk. The respondent, Glacier Resorts Ltd. (Glacier Resorts), wished to build a year-round ski resort in Qat’muk with lifts to glacier runs and overnight accommodation for guests and staff. For more than two decades, Glacier Resorts had been negotiating with the British Columbia government and stakeholders, including the Aboriginal peoples who inhabited the valley, the Ktunaxa and the Shuswap, on the terms and conditions of the development. Early on in the process, the Ktunaxa and Shuswap peoples raised concerns about the impact of the resort project. The Ktunaxa asserted that Qat’muk was a place of spiritual significance for them. Notably, it was home to an important population of grizzly bears and to Grizzly Bear Spirit, “a principal spirit within Ktunaxa religious beliefs and cosmology”. Late in the consultation process, the Ktunaxa adopted an uncompromising position. They asserted 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. After fruitless efforts to revive the consultation process and reach agreement, the government declared that reasonable consultation had occurred and approved the project. The appellants brought proceedings in judicial review before the British Columbia Supreme Court to overturn the approval by the Minister of the ski resort. The chambers judge dismissed the petition for judicial review, and the Court of Appeal affirmed his decision.

HELD: Appeal dismissed. To establish an infringement of the right to freedom of religion, the claimant was required to demonstrate the following: (1) that he or she sincerely believed in a practice or belief that had a nexus with religion; and (2) that the impugned state conduct interfered, in a manner that was non trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief. It was undisputed that the Ktunaxa sincerely believed in the existence and importance of Grizzly Bear Spirit. They also believed that permanent development in Qat’muk would drive this spirit from that place. The second part of the test, however, was not met in this case. The Ktunaxa failed show that the Minister’s decision to approve the development interfered either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. The Minister’s decision did neither of those things. This case was not concerned with either the freedom to hold a religious belief or to manifest that belief. The claim was rather that s. 2(a) of the Canadian Charter of Rights and Freedoms (Charter) protected the presence of Grizzly Bear Spirit in Qat’muk. This was a novel claim and invited the Court to extend s. 2(a) beyond the scope recognized in Canadian law. The extension of s. 2(a) proposed by the Ktunaxa would put deeply held personal beliefs under judicial scrutiny. Section 2(a) protected the freedom to have and manifest religious beliefs, and the Ktunaxa’s claim did not fall within those parameters. On its face, the record supported the reasonableness of the Minister’s conclusion that the s. 35 obligation of consultation and accommodation had been met. The record did not support the view that the Minister mischaracterized the spiritual right claimed by the Ktunaxa or that he failed to properly assess the adverse impact of the development on the spiritual claim. The Minister engaged in deep consultation on the spiritual claim. The Minister’s decision did not violate the Ktunaxa’s freedom of religion as their claim did not fall within the scope of s. 2(a) of the Charter, and the Minister’s conclusion that consultation sufficient to satisfy s. 35 of the Constitution Act, 1982 had occurred had not been shown to be unreasonable.

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), [2017] S.C.J. No. 54, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., November 2, 2017. Digest No. TLD-October302017011SCC