Courtesy of Stikeman Elliott. View original article here.
The Supreme Court of Canada (SCC) released a decision earlier today dismissing a novel Aboriginal freedom of religion Charter claim that was raised in opposition to a ski resort development in British Columbia: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54(Ktunaxa). This is a significant case as it is the first time the SCC has been asked to consider an Aboriginal spiritual rights claim and the protections that may be afforded to it under s. 2(a) of the Charter in addition to s. 35 of the Constitution Act, 1982. McCarthy Tétrault LLP (Neil Finkelstein, Brandon Kain, and Bryn Gray) intervened in this case on behalf of the Canadian Chamber of Commerce.
Ktunaxa limits the scope of potential Aboriginal spiritual rights claims that may be protected under s. 2(a) of the Charter, which is significant given that there are Aboriginal spiritual rights claims across Canada that are attached to vast tracts of land. The decision also importantly confirms once again that Aboriginal groups do not have a veto over projects and that developments can proceed without consent if adequate consultation has occurred, except in limited cases of established rights, such as established Aboriginal title.
In this appeal, the Ktunaxa Nation Council sought to overturn the approval of a Master Development Agreement (MDA) for a new ski resort in the Jumbo Valley in the BC interior on two grounds: (i) the project violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter and (ii) the government breached it duty to consult. In both instances, the Ktunaxa argued that the development was taking place in a sacred area called Qat’muk that was home to the Grizzly Bear Spirit and that no accommodation of their spiritual rights was possible.
The approval at issue was the last in a serious of approvals granted over 20 years, in which Aboriginal consultation had been undertaken at every stage. Significant accommodation measures were also made to the project in response to concerns raised by the Ktunaxa, including reducing the size of the recreational area by 60 per cent. The First Nation located closest to the project was satisfied with these changes and indicated their support but the Ktunaxa Council, representing three other First Nations, remained opposed. Despite their opposition, the Ktunaxa Council continued to engage in lengthy discussions with the Crown in an effort to find mutually satisfactory accommodation of their concerns. Several accommodation offers were rejected by the Ktunaxa Council but these rejections did not explicitly identify the Grizzly Bear Spirit or the sacred nature of the Jumbo Valley as outstanding concerns that needed to be addressed.
After several years, the Minister advised the Ktunaxa Council that a reasonable consultation process had occurred and that approval for the resort could be given while accommodation discussions continued. The Ktunaxa Council subsequently adopted a “very different and uncompromising position” that the process had not properly considered the sacred nature of the Jumbo Valley and that their spiritual concerns could not be accommodated. This was because a ski resort with lifts to glacier runs and permanent structures would drive the Grizzly Bear Spirit from Qat’muk and irrevocably impair their religious beliefs and practices.
Similar to the BC Supreme Court and BC Court of Appeal, the SCC dismissed the Ktunaxa’s appeal on both grounds.
Freedom of Religion
Chief Justice McLachlin and Justice Rowe for the majority concluded that the Ktunaxa’s spiritual rights claim is not protected by s. 2(a) of the Charter. They held that there are two aspects of the right to freedom of religion, namely the freedom to (i) hold religious beliefs and (ii) manifest those beliefs and that neither were infringed upon in this case. The Minister’s decision did not interfere with the Ktunaxa’s freedom to believe in the Grizzly Bear Spirit or to manifest this belief. Instead, the Ktunaxa were seeking to protect the Grizzly Bear Spirit itself and the subjective spiritual fulfillment that they derive from it, neither of which are protected by s. 2(a) of the Charter.
In a concurring in result opinion, Justice Moldaver held that the Minister’s decision infringed s. 2(a) of the Charter because it would interfere with the Ktunaxa’s ability to act in accordance with a religious belief or practice in more than a trivial or insubstantial manner. He held that where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significant, this infringes a person’s right to religious freedom. In this case, he held that the development would render the Ktunaxa’s religious beliefs related to the Grizzly Bear Spirit devoid of any spiritual significance.
Yet despite his finding that the Minister’s decision infringed s. 2(a) of the Charter, he concluded that the Minister’s decision was reasonable because it reflected a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives, to administer Crown land and dispose of it in the public interest. The Minister tried to limit the impact of the development on the substance of the Ktunaxa’s s. 2(a) right as much as reasonably possible given these objectives with significant accommodation measures. Granting the Ktunaxa a power to veto development over the land would effectively give transfer to them a significant property interest – namely a power to exclude others from constructing permanent structures on public land and regulating a vast area of public land so that it conforms to the Ktunaxa’s religious beliefs. Justice Moldaver concluded that allowing the Ktunaxa to dictate the use of 50 square kilometres of public land in accordance with their religious belief was not consistent with the Minister’s statutory mandate and would significantly undermine if not completely compromise it.
Duty to Consult
The SCC unanimously held that the Minister’s conclusion that the Crown had met its duty to consult and accommodate with the Ktunaxa under s. 35 of the Constitution Act, 1982, and thus his decision to approve the MDA, were reasonable.
The SCC held that the Crown’s consultation with the Ktunaxa was properly characterized by the Minister as “deep” consultation and was adequate, even though the Ktunaxa ultimately did not achieve their desired outcome to cancel development of the resort in Qat’muk to protect the Grizzly Bear Spirit. In so finding, the Court highlighted several important principles of consultation. It noted that the steps in the consultation and accommodation process (first articulated by the SCC in Haida Nation), are “offered as guidance to assist parties in ensuring that adequate consultation takes place”, but the process is not intended as a “rigid test or a perfunctory formula.”[i] Rather, what matters is “whether in fact the consultation that took place was adequate” and whether the process was consistent with the honour of the Crown.[ii] The SCC noted, for example, that it is possible for the Crown to mischaracterize a right and still fulfill the duty to consult.[iii] In addition, “the s. 35 obligation to consult and accommodate is a right to a process, not to a particular outcome” and “s. 35 does not give unsatisfied claimants a veto over development.”[iv]
The SCC also found that the Ktunaxa’s petition for a declaration that Qat’muk is sacred and that permanent construction should be banned from the site was an improper use of the judicial review process. A court that is in judicial review of an administrative decision which centres on the adequacy of consultation, is not equipped to pronounce on the validity of an unproven claim to a sacred site and associated spiritual practices. Similarly, administrative decision-makers may need to assess the prima facie strength of unproven claims, but proving Aboriginal rights claims requires a trial in which evidence can be tested, and “with the benefit of pleadings, discovery, evidence and submissions.”[v] The SCC recognized the concerns raised by the Ktunaxa if their claimed right were not protected, but noted that “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.”[vi] The SCC also commented that injunctive relief to delay a project may also be available in such cases.[vii]
This decision is significant for a number of reasons:
1. It restricts Aboriginal spiritual rights claims under the Charter
First, it restricts the types of Aboriginal spiritual rights claims that will engage freedom of religion protections under the Charter. In particular, the fact that certain land is sacred to an Aboriginal group does not mean that any development of that land would violate the freedom of religion of the specific group. The development must interfere in a non-trivial way with the Aboriginal group’s ability to hold or manifest a particular religious belief, such as interfering with an Aboriginal group’s ability to engage in a particular spiritual practice on a specific area of land.
Moreover, even if there is an infringement of freedom of religion, this does not mean a development cannot proceed because the religious freedoms of the particular Aboriginal group must be balanced with the relevant statutory objectives at issue. The majority reasoning did not address this balancing exercise because they concluded that freedom of religion was not engaged in this case. However, the minority concurring opinion did so and the reasoning suggests that broad Aboriginal spiritual rights claims that effectively amount to a power of exclusive use or veto over land use will not meet a proportionality test. While this is in the Charter context, the decision further underscores the balance and compromise that is necessary on both sides in Aboriginal rights disputes and the risk that Aboriginal groups take in putting forward absolutist positions.
2. It emphasizes that consultation is a “two-way street”
The SCC repeated the well-established principle that there are reciprocal obligations on Aboriginal groups to facilitate the process of consultation and accommodation by, among other things, setting out claims clearly and as early as possible, not frustrating the Crown’s reasonable good faith attempts at consultation, and not taking unreasonable positions to thwart the Crown from making decisions where agreement cannot be reached, despite meaningful consultation.[viii]
In its review of the facts, the SCC noted the extensive consultation that took place over two decades, and which in the Minister’s view, had come to a conclusion in 2009. The SCC noted that there had been multiple occasions up to that point in which the Crown offered accommodation and the Ktunaxa had the opportunity to raise concerns, but they did not raise any specific concerns regarding the Grizzly Bear Spirit and the sacred nature of the Jumbo Valley. Rather, by 2009, the Minister had concluded that the Ktunaxa’s outstanding concerns related primarily to interests other than their asserted Aboriginal rights and title claims.[ix]
Only after the Minister had concluded consultation was complete, did the Ktunaxa first raise the specific concerns regarding the Grizzly Bear Spirit and take the new position that no accommodation was possible and that a complete rejection of the resort was the only solution. At that late stage, the Ktunaxa indicated that there was no point in any further consultation, although the Minister attempted to further consult. The late and uncompromising approach taken by the Ktunaxa in asserting their new claim was noted by all three levels of court, and in our view was not an insignificant factor in assisting the courts with reaching their decision. This decision therefore sets a strong example of the importance placed by the courts on the reciprocal obligations of Aboriginal groups in consultation.
3. It re-confirms that s.35 provides a right to a process, not to a veto or the right to consent
The SCC confirmed that the process of consultation does not provide any guarantee that the specific accommodation sought by an Aboriginal group will be warranted or possible. The ultimate obligation, rather, is that the Crown act honourably.[x] The Court went on to emphasize that the duty to consult does not provide Aboriginal groups a veto over development and that “where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group”.[xi] The SCC reiterated that “consent is required only for proven claims, and even then only in certain cases”, such as in cases of established Aboriginal title.[xii]
Justice Moldaver’s concurring reasons regarding freedom of religion also recognized the difficult position that the Minister was placed in to either fulfill his statutory objectives or to provide the Ktunaxa with what would amount to a veto right against any development over fifty square kilometres of Crown land, on the basis of unproven claims. In his view, the Minister’s rejection of such a veto right was reasonable in light of his statutory objectives, while limiting the Ktunaxa’s right as little as reasonably possible.[xiii]
[i] Para. 81.
[ii] Paras. 81, 83.
[iii] Para. 104, citing Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at paras. 38-39.
[iv] Para. 83.
[v] Paras. 84, 85.
[vi] Para. 86.
[vii] Para. 86.
[viii] Paras. 79, 80
[ix] Para. 31.
[x] Para. 79.
[xi] Para. 83.
[xii] Para. 80.
[xiii] Paras. 119, 120