The Supreme Court of Canada has handed down judgment in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) 2017 SCC 54 (CanLII), dismissing a challenge to the construction of a ski resort in an area in British Columbia of particular spiritual significance to the Ktunaxa Nation.
The Ktunaxa are a First Nation whose traditional territories include an area in BC that they call Qat’muk. They believe that is home to Grizzly Bear Spirit, a principal spirit within their religious beliefs and cosmology. Glacier Resorts sought Government approval to build a year‑round ski resort in Qat’muk. The Ktunaxa were consulted and, after they raised concerns, the resort plan was changed to add new protections for Ktunaxa interests. The Ktunaxa remained unsatisfied but committed themselves to further consultation.
Late in the process, they adopted the position that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk and therefore irrevocably impair their religious beliefs and practices. Efforts to continue consultation failed and the Minister declared that reasonable consultation had occurred and approved the project. The Ktunaxa sought judicial review of the approval decision on the grounds that the project would violate their constitutional right to freedom of religion protected by s.2(a) of the Canadian Charter of Rights and Freedoms in the Consitution Act 1982 and that the Minister’s decision breached the Crown’s duty of consultation and accommodation. They were unsuccessful at first instance and before the Court of Appeal.
Before the Supreme Court, the Ktunaxa contended that the Minister’s decision to allow the project to proceed had violated their right to freedom of conscience and religion protected by s.2(a) of the Charter and, independently of that, that it had also violated their rights under s.35 of the Constitution Act (Rights of the aboriginal peoples of Canada). Further, even if the Minister had undertaken adequate consultation under s.35, his decision could still be impeached on the ground that it violated s.2(a) .
The majority of the Court (McLachlin CJ and Abella, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ) noted that, with respect to the s.2(a) claim, the Ktunaxa were in the same position as non-Aboriginal litigants . The Court also noted that the Minister’s Rationale for approving the resort did not analyze the s.2(a) claim and suggested that “The Minister should have done so”; however, his failure to conduct an analysis of the Ktunaxa’s right to freedom of religion was immaterial because the claim was outside the scope of s.2(a) .
In R v Big M Drug Mart Ltd  1 SCR 295, 1985 CanLII 69 (SCC), the majority of the Court [at 336] had defined s.2(a) as protecting “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination” : “So defined,” said the Supreme Court, “s.2(a) has two aspects — the freedom to hold religious beliefs and the freedom to manifest those beliefs” . Further:
“To establish an infringement of the right to freedom of religion, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief” .
It was not disputed that the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit and that permanent development in Qat’muk will drive this spirit from that place . However, the second part of the test was not met. The Ktunaxa had not demonstrated 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 does neither of those things. This case is not concerned with either the freedom to hold a religious belief or to manifest that belief. The claim is rather that s.2(a) of the Charter protects the presence of Grizzly Bear Spirit in Qat’muk. This is a novel claim and invites this Court to extend s.2(a) beyond the scope recognized in our law” .
The Court was not prepared to do so:
“The state’s duty under s. 2(a) is not to protect the object of beliefs … Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination. In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship” [71: emphasis added].
As to the challenge to reasonableness, the Minister’s conclusion that the consultation had been sufficient to satisfy s.35 of the Constitution Act 1982 had not been shown to be unreasonable .
In a separate judgment, Moldaver and Côté JJ held that the Minister’s decision to approve the ski resort had indeed infringed the Ktunaxa’s s.2(a) Charter right to religious freedom; however, the Minister had reasonably concluded that the duty to consult and accommodate the Ktunaxa under s.35 of the Constitution Act 1982 had been met and the decision was justified as a proportionate balancing between the Ktunaxa’s s.2(a) Charter right and the Minister’s statutory objectives.
[With thanks to Mark Hill QC for bringing the case to my attention.]