Aboriginal spirituality and freedom of religion: the Ktunaxa decision, 2015 BCCA 352

In Ktunaxa Nation v British Columbia, 2015 BCCA 352, the BC Court of Appeal considered a decision of the Minister of Forest, Lands and Natural Resources, to approve the building of Jumbo Glacier Resort in the Jumbo Valley near Invermere, BC. In 2012, the Minister had approved a “Master Development Agreement”, clearing the final administrative hurdle for the Resort. If constructed, the Resort would occupy approximately 50% of the sacred territory of the Ktunaxa Nation – Qat’muk, which is home to one of the Ktunaxa’s most important spirits, the Grizzly Bear Spirit. The Ktunaxa applied for judicial review of the Minister’s decision, arguing that his decision violated their s. 2(a) Charter right to freedom of religion, and also breached the duty to consult and accommodate the Ktunaxa under s. 35 of the Constitution Act, 1982. The chambers judge dismissed the judicial review petition.

The main issues on appeal were whether the Minister failed to properly consider and give effect to the Ktunaxa’s s. 2(a) and s. 35 rights, and whether the chambers judge erred in his approaches to s. 2(a), s. 35 and the duty to consult and accommodate. On the issue of the proper approach to s. 2(a), the Court of Appeal implicitly upheld the Minister’s failure to expressly consider the claimant’s s. 2(a) Charter claim. The Court outlined the standard test for determining whether state action infringes s. 2(a) from Syndicat Northcrest v Amselem: a claimant must demonstrate a sincere belief in a practice or belief that has a nexus with religion, in order to trigger the protection of s. 2(a). The claimant must then show that the state interference with his or her belief is not trivial or insubstantial. Applying this test, the Court agreed with the chambers judge that the Ktunaxa had asserted a sincere spiritual belief that has a clear nexus with religion.

The Court of Appeal framed the second part of the Amselem test as asking whether the subjective loss of meaning to religious practices would more than trivially or substantially interfere with the communal dimension of the s. 2(a) right, by diminishing the vitality of the Ktunaxa’s religious community. On this issue, the judge concluded that s. 2(a) did not apply to protect the vitality of religious communities, where this protection seeks to restrict and restrain the behavior of others, who do not share the same subjective religious belief of this community. The Court, in essence, suggested that the s. 2(a) right does not protect aboriginal spirituality to the extent of protecting places or animals of spiritual value from development, because the right cannot be invoked to control or modify the behavior of others in relation to such places or animals. While s. 2(a) Charter cases should be about protecting an individual or group’s religious practices or beliefs from state-sanctioned interference, the Court of Appeal re-framed the analysis as being about protecting “others” and the state from the Ktunaxa. The Court effectively placed an internal limit on the s. 2(a) right, balancing the competing values of aboriginal spirituality and the needs of the broader society at the s. 2(a) analysis stage, rather than the s. 1 justification stage.

The BC Court of Appeal concluded that both the Minister and the chambers judge properly considered the scope of the s. 35 right, by focusing on the effects of state action on the general aboriginal right. Further, it found that the Minister had reasonably characterized the adverse impact on the s. 35 right, as relating to the impact of developing the Proposed Resort on the Ktunaxa, and as a claim that developing the Qat’muk area was fundamentally inimical to the Ktunaxa’s belief. Finally, the Court found that a reasonable process of consultation and accommodation had occurred between the Minister and the Ktunaxa, and that the chambers judge had undertaken a correct analysis of the process of consultation and accommodation.

The Ktunaxa decision is significant because it sets an unsettling precedent for aboriginal groups who seek to have their Charter s. 2(a) rights recognized and protected by courts. The Court of Appeal’s reasons suggest that an administrative decision maker can fail to consider a claimant’s s. 2(a) Charter claim, and this will not be a basis for disturbing the decision on judicial review. The decision also suggests that aboriginal Canadians whose religious practices depend on sacred sites and animals will not be able to protect their religious practices and beliefs under s. 2(a). Further, the Court’s decision appears to depart from Charter jurisprudence suggesting that the s. 1 justification analysis stage is the appropriate stage to balance competing values of Charter claimants and the broader society. The BC Court of Appeal’s remarks about defining an aboriginal right with reference to the effects of state action on the “general aboriginal right” also depart from the traditional test of defining an aboriginal right by identifying the practices, traditions and customs central to the aboriginal society prior to European contact.

On March 17, 2016, the Supreme Court of Canada granted the Ktunaxa leave to appeal this decision. It will be interesting to see whether the SCC will focus its analysis on the more technical administrative law and title issues in this case, or whether its reasons will also reflect a sensitivity to the unique dimensions of aboriginal spirituality. Aboriginal spirituality has attributes which set it apart from many other forms of religious worship that are more commonly the subject of s. 2(a) Charter claims. Arguably, Courts should be particularly sensitive to the need to protect aboriginal spirituality, in light of the history of religious suppression that has occurred in relation to aboriginal peoples in Canada.

If the Ktunaxa succeed in arguing that aboriginal spirituality should be protected under s. 2(a), this will provide First Nations groups with a powerful tool to protect sacred places and animals without having to engage in lengthy, complex aboriginal title and rights litigation. Furthermore, it may provide leverage for First Nations groups to gain additional protections over spiritually significant places and animals, such as anti-trophy hunting laws. Perhaps most importantly, it would be the first time that a Canadian court has officially recognized aboriginal spirituality under s. 2(a) of the Charter.

Ktunaxa Nation v British Columbia, 2015 BCCA 352

Lisa C. Fong and Alanna Mackenzie