Duty to consult: Ktunaxa Nation v British Columbia (Minister of Forests Lands and Natural Resource Operations)

The Ktunaxa Nation (“KN”) appealed a dismissal of its application for judicial review of a decision by the Minister of Forests, Lands and National Resource Operations’ (the “Minister”) to approve a Master Development Agreement (“MDA”) with Glacier Resorts Ltd. (“Glacier”). The decision allowed Glacier to build a year-round ski resort (the “Proposed Resort”) on Crown land in the Jumbo Valley within KN’s traditional territory. There was a lengthy regulatory review process prior to the Minister’s decision, and the KN did participate in the process but they opposed the project right from the start because the Jumbo Valley lands were spiritually significant to the KN.

On judicial review, KN asserted that, in approving the MDA, the Minister violated KFN’s freedom of religion guaranteed by s. 2(a) of the Charter, and breached the Crown’s duty to consult and accommodate KN’s asserted Aboriginal rights. The Proposed Resort lies at the heart of a central area of paramount spiritual significance to KN. KN believes the area is the Grizzly Bear Spirit’s home, and that any development in the area would result in the Spirit leaving KN’s territory, and leave KN without its spiritual guidance. This would have a profound negative impact on KN’s identity and culture. The chambers judge rejected KN’s arguments, and KN appealed.

The BC Court of Appeal rejected KN’s arguments. The court reasoned that religious freedom rights under section 2(a) of the Charter could not preclude the Province’s decision, since Section 2(a) cannot be used to restrain and restrict the behaviour of others who do not share a belief. Thus, KN could not stop development of the Proposed Resort on the basis of its religious freedoms. The court also agreed with the lower court’s finding that the Minister acted in good faith at all times, and that the process of consultation and accommodation met the reasonableness standard.

Interestingly, in June 2015, before the BC Court of Appeal released its decision, the BC Environment Minister decided not to renew Glacier’s environmental assessment certificate, on the basis that Glacier did not start construction within five years of the approval as required under law. Now, Glacier has petitioned the court to review the Environment Minister’s refusal, arguing that the Environment Minister was biased, and claiming that construction delays were due to delays by government in providing required permits and authorisations. (See, http://www.cbc.ca/news/canada/british-columbia/jumboskiresort-marypolak-environment-first-nation-1.3380554)

Ktunaxa Nation v British Columbia (Minister of Forests Lands and Natural Resource Operations), 2015 BCCA 352

Lisa C. Fong, Michael Ng, and Siddharth Akali