Sacred but not protected

By Troy Hunter November 10, 201710 November 2017

Sacred but not protected

Last week, in a decision that will have implications for future Indigenous religious freedom claims, the Supreme Court of Canada dismissed an appeal by the Ktunaxa, and held that a ski resort project, approved by the province, does not infringe the Ktunaxa First Nation's freedom of religion.

Billed as Canada’s first year-round glacier-based ski resort, the Jumbo Glacier Resort has long divided residents of the Kootenay region in British Columbia. Supporters tout the potential economic benefits from the development. The Ktunaxa First Nation, however, oppose the project, as it will be built on what they consider sacred land and home of Grizzly Bear Spirit.

The proposal to goes back to 1991.  That was at least a decade before the Supreme Court of Canada decided Haida Nation, the leading ruling on the Crown’s duty to consult Aboriginal groups before exploiting lands to which they may have claims. Prior to the announcement, the Ktunaxa Nation had not been consulted but there were procedures such as the CORE land planning process and the Environmental Assessment process which did require consultation with First Nations.  Ultimately, the Jumbo Glacier Alpine Ski Resort Project was one of the longest consultation and environmental assessment processes in Canada’s history. 

Consultations were carried out until 2009 when, at the eleventh hour, the Ktunaxa First Nation notified the British Columbia government that no accommodations would be appropriate for the Ktunaxa to agree that the project proceed. The Ktunaxa asserted that the area they call Qat’muk was sacred to the spirit of the grizzly bear and of spiritual significance to them.  Accommodation was impossible because the ski resort’s infrastructure would drive Grizzly Bear Spirit from the area “and irrevocably impair their religious beliefs and practices.”

Nevertheless, the province approved the ski resort development. The Ktunaxa Nation, led by Kathryn Teneese, brought proceedings in judicial review on grounds that the project violated the Ktunaxa freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms. It also argued that the Crown had breached its duty of consultation and accommodation under s.35 of the Constitution Act, 1982.  The BC Supreme Court dismissed the petition for judicial review and the BC Court of Appeal affirmed the decision.  The Supreme Court of Canada dismissed the appeal last week.

The top court determined that “the Charter protects all sincere religious beliefs and practices, old or new”. 

This is an important determination.  Under a s.35 aboriginal rights analysis, the test is whether or not a practice, tradition or custom of the Aboriginal group has such elements pre-existing with the first European contact that it is integral to the group’s distinctive culture. To invoke freedom of religion in an Aboriginal context, there is a different two-part test. The claimant must demonstrate a sincere belief in a practice or belief that has a nexus with religion and that the conduct of the state interferes in a non-trivial or not insubstantial manner with a person’s ability to act in accordance with that practice or belief.  An objective analysis is required at the second part of the test.

The Supreme Court considered the Ktunaxa claim to extend s.2(a) to “protect the presence of Grizzly Bear Spirit in Qat’muk” as novel.  It held that “the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship.”  It protects a Sikh’s student right to wear a Kirpan at school, the freedom to pursue practices, or refusing to be photographed, but certainly not the Grizzly Bear Spirit itself.

Moreover, the court agreed with the chambers judge on a standard of reasonableness that the Crown discharged its duty to consult and accommodate. 

It noted that the regulatory process was extensive with process and negotiations that spanned two decades.  It was consistent with the honour of the Crown, even if the Aboriginal group did not get their desired outcome.  In addition, it was stated, “adequacy of consultation is not determined by the length of the process, although this may be a factor to be considered”.

The court touched upon reconciliation: “Claims should be identified early in the process and defined as clearly as possible, in most cases, this will lead to agreement and reconciliation,” it wrote.  They went on further and stated, “in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket”.

The court concluded that the Ktunaxa Nation’s freedom of religion had not been violated. The claim didn’t fall within the scope of s. 2(a) of the Charter, and the consultation was sufficient for the satisfaction of the Aboriginal Rights claim under s.35 of the Constitution Act of Canada, 1982.  The province’s decision wasn’t proven to be unreasonable, the court found.

It also took the view that the claim the position taken by the Ktunaxa in 2009 was “designed to require a particular accommodation rather than to assert and support a particular pre-contact practice, custom, or tradition that took place on the territory in question.” The suggestion here is that the assertion that no development could take place because it would drive the spirit of the grizzly bear out of Qat’muk was, perhaps, a fabrication that had been devised to ultimately give the Ktunaxa a veto over the proposed development.

Interestingly, justices Moldaver and Cote, found that there had been a breach of s. 2(a).  Noting a connection between belief and the physical world, they took the view that state conduct rendering “a person’s sincerely held religious beliefs devoid of all religious significance”… “infringes a person’s right to religious freedom.”  However, they felt the decision was reasonable as the province had to balance the Ktunaxa’s s. 2(a) Charter rights and  “statutory objectives… to administer Crown land and dispose of it in the public interest.”

Otherwise, it would amount to giving “the Ktunaxa the power to exclude others from developing land that the public in fact owns.”  This last statement is a possible error of fact because the Ktunaxa never entered a treaty, never ceded their land and have been in treaty negotiations since 1994. 

The Ktunaxa Nation Council Chair, Kathryn Teneese, stated shortly after the decision, “We will never waver in our duty and obligation to protect Qat’muk.  She went on further and said, “We call on Canada and BC to work with us, in the spirit of reconciliation and the commitments of both governments to the UN Declaration on the Rights of Indigenous Peoples, to find alternative solutions to protect Ktunaxa spiritual, cultural and stewardship values within Qat’muk”.

Troy Hunter is a member of the Ktunaxa First Nation and is a member of the Law Society of British Columbia after transferring from the Law Society of Upper Canada.

Photo: Troy Hunter at Qat’muk, on top of Glacier Dome, Jumbo Glacier in background – circa, June 1995. Photo by Oberto Oberti.

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