November 14, 2017

Ktunaxa: Freedom of religion falls short of protecting aboriginal spirituality


A majority of the Supreme Court of Canada decided that freedom of religion, which is protected under section 2(a) of the Canadian Charter of Rights and Freedoms, does not protect sacred sites, and did not, in particular, protect the home valley of the Grizzly Bear Spirit of the Ktunaxa (from a ski resort) in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resources Operations), 2017 SCC 54.

The case involved the Minister of Forest, Lands and Natural Resources approving the Jumbo Glacier Resort in the Jumbo Valley near Invermere, British Columbia – at a place the Ktunaxa call Qat’muk. On the basis that a permanent development would drive the Grizzly Bear Spirit away, and deprive the Ktunaxa of its guidance, the Ktunaxa applied for judicial review of the Minister’s decision, arguing that his decision violated their freedom of religion, and also breached the duty to consult and accommodate the Ktunaxa under s. 35 of the Constitution Act, 1982.

The majority of the court that freedom of religion (only) protects the freedom to hold religious beliefs, and the freedom to manifest those beliefs – protections developed in the context of western religions. What the freedom does not protect is the “object” of beliefs. The majority held that while the freedom protected “everyone’s freedom to hold such beliefs and to manifest them in worship,” it did not protect “the spiritual focus point of worship.” [71] Accordingly, while Ktunaxa believed that a permanent development in Qat’muk would drive the Grizzly Bear Spirit from that place, they had not shown that the crown allowing such a development interfered with their ability to act in accordance with their practices or beliefs. In other words, freedom of religion does not protect sacred sites.

Only a minority of the court, which had decided that the crown’s conduct infringed on the Ktunaxa’s freedom of religion, noted that the majority approach failed to recognize and protect key aspects of aboriginal spirituality, namely their connection to land:

[127] This kind of state interference is a reality where individuals find spiritual fulfillment through their connection to the physical world. The connection to the physical world, specifically to land, is a central feature of Indigenous religions. Indeed, as M.L. Ross explains, “First Nations spirituality and religion are rooted in the land” (First Nations Sacred Sites in Canada’s Courts (2005), at p. 3 (emphasis added)). In many Indigenous religions, land is not only the site of spiritual practices in the sense that a church, mosque or holy site might be; land may itself be sacred, in the sense that it is where the divine manifests itself. Unlike in Judeo-Christian faiths for example, where the divine is considered to be supernatural, the spiritual realm in the Indigenous context is inextricably linked to the physical world. For Indigenous religions, state action that impacts land can therefore sever the connection to the divine, rendering beliefs and practices devoid of their spiritual significance. Where state action has this effect on an Indigenous religion, it interferes with a believer’s ability to act in accordance with his or her religious beliefs and practices. […]

Even the minority decided, however, that the crown’s conduct amounted to a justifiable infringement of the Ktunaxa’s freedom of religion.

Given the court’s ruling on the limitations of freedom of religion, the extent to which First Nations may still protect sacred sites by asserting aboriginal rights or title, relating to historical spiritual practices and uses of sacred sites, remains to be seen.

On the second issue of consultation, the court decided that the crown had fulfilled its duty to consult with the Ktunaxa, to give effect to their unproven aboriginal rights, as required by section 35 of the Constitution Act, 1982. It held that the Minister did engage in “deep” consultation [111], and did make many accommodations, although not the “ultimate accommodation demanded by the Ktunaxa – complete rejection of the ski resort.” [114]

Remarkably, however, the majority implied that the Ktunaxa ought not to have asked that the judge hearing the judicial review declare that Qat’muk is sacred to the Ktunaxa, as such a declaration “cannot be made by a court sitting in judicial review of an administrative decision to approve a development. In judicial proceedings, such a declaration can only be made after a trial of the issue and with the benefit of pleadings, discovery, evidence, and submissions. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation.” [84]

This statement appears to disapprove of judicial review proceedings as occasions where First Nations may establish the very aboriginal rights they say are being infringed by a government decision. Such disapproval may have wide ramifications. Such a position is, however, also somewhat puzzling, as judicial review processes clearly may account for complex factual issues. In BC, for example, chambers judges addressing judicial reviews have a power to transfer such proceedings to the trial list (BC Civil Rules 16-1(18) and 22-1(7)(d)). Similarly, the Federal Court may also direct that applications for judicial review be treated as actions (Federal Courts Act, s. 18.4(2)). Furthermore, courts may permit adverse parties to cross-examine witnesses who provide affidavit evidence. Given these important procedural details, which the court did not touch upon, only time will reveal the ultimate impact of the court’s remarks about appropriate processes for proving aboriginal rights.

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resources Operations), 2017 SCC 54

Lisa C. Fong and Michael Ng