Commercial Real Estate


Supreme Court of Canada Sets Limit on Duty to Consult & Religious Freedom in Ktunaxa v B.C.

BD&P Bulletin - November, 2017
Paul Beke and Ashton Butler, Student-at-Law

In Ktunaxa Nation v British Columbia (Ktunaxa), 2017 SCC 54, the Supreme Court of Canada (the SCC) recently considered two constitutional rights in the context of land resource development:

1. freedom of religion, under s. 2(a) of the Canadian Charter of Rights and Freedoms (the Charter)

2. protection of Aboriginal interests, under s. 35 of the Constitution Act, 1982 (the Constitution).

Specifically, the SCC decided to uphold approval of the Jumbo Glacier ski resort by the B.C. Minister of Forests, Lands and Natural Resource Operations (the Minister), despite claims by the Ktunaxa First Nation that the development would breach the Nation’s constitutional rights.

Limits of Constitutional Rights Protecting Unproven Aboriginal Claims

Some key points from Ktunaxa are as follows:

1. The duty to consult in s.35 of the Constitution requires that the Crown act honourably. Section 35 grants a right to a proper process, not a right to a particular outcome. The reconciliation of Aboriginal and state interests is a process of "give and take," and outcomes are not guaranteed. Ultimately, when the Crown has consulted adequately, a development may proceed without the consent of an Aboriginal group.

2. Courts look favourably upon extensive consultation and assessment processes that take place throughout a rigourous regulatory process.

3. Section 2(a) of the Charter does not extend to protect the object of religious beliefs (such as Grizzly Bear Spirit). Rather, the right protects freedom to hold and practice religious beliefs.

Long History of Consultation Culminated in a Stark Choice for Minister

The facts in Ktunaxa were that Glacier Resorts Ltd. (Glacier) proposed to build a year-round ski resort in the area the Ktunaxa people call Qat'muk. For over two decades, Glacier pursued an evaluation process with the B.C. government and stakeholders, including the Ktunaxa and Shuswap peoples. Those First Nations each received funding to participate extensively. Early in the process leading to the original approval, the Ktunaxa stated (among other concerns) that Qat'muk was a place of spiritual significance—home to an important population of grizzly bears and to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs.

After 20 years of review and consultation, the parties seemed to agree in principle on appropriate accommodations. But then, the Ktunaxa adopted a new uncompromising position—that accommodation was impossible because the ski resort would drive Grizzly Bear Spirit from Qat'muk and irrevocably impair their religious practices.

Ultimately, the Minister decided that the negotiated accommodations, approval by the Shuswap and the continued ability of the Ktunaxa to exercise their aboriginal rights made the development plan reasonable. This was particularly so when balanced against the social benefits of the project ($900 million in capital investment, and 750 to 800 direct, permanent jobs). Glacier had committed to accommodating the Ktunaxa, in a variety of ways, including: (1) reducing the development area by 60%, (2) monitoring environmental impacts, (3) reserving the area for continuing traditional practices, and (4) reducing the impact on the grizzly bear population, by removing a ski lift on the west side of the valley, excluding the lower Jumbo Creek area from development, and establishing a wildlife management area. The province also committed to manage the grizzly bear population through existing legislation and policies. After this deep consultation process, the Minister concluded that the extensive accommodations provided to the Ktunaxa minimized impacts on Aboriginal rights, the environment and the grizzly bear habitat.

SCC Explains that Freedom of Religion Does Not Protect Deities

The Ktunaxa applied for judicial review, but the chambers judge, the Court of Appeal for British Columbia, and the SCC all upheld the Minister’s approval of the Master Development Agreement between Glacier and B.C. The Ktunaxa had raised two constitutional challenges:

1. a novel claim that the Crown had breached the Ktunaxa’s Charter right to freedom of religion, by allowing development, which would cause Grizzly Bear Spirit to flee the Qat’muk area

2. a claim that the Crown had failed to meet its duty to consult the Ktunaxa, under s. 35 of the Constitution.

On the first constitutional challenge, the SCC held that the Ktunaxa had shown sincere belief in the existence and importance of Grizzly Bear Spirit, and belief that permanent development would drive the Spirit away. Nevertheless, the Ktunaxa had failed to show that the development would hinder their religious beliefs or practices. The SCC concluded that the scope of s. 2(a) of the Charter protects neither the presence of Grizzly Bear Spirit, itself, nor the spiritual meaning that the Ktunaxa derive from that presence. The SCC reasoned that the scope of the 2(a) right could not extend further, because that would entangle the courts in the evaluation of the merits and methods of protecting objects of religious belief, such as spirits. Scrutiny and analysis of such profoundly personal beliefs in courtrooms would be inconsistent with the principles underlying freedom of religion.

SCC Confirmed the Right to Consultation is Not a Veto

On the second constitutional challenge, the SCC held that the Minister had reasonably decided that the Crown had met its duty to consult the Ktunaxa; in this case, the Crown had consulted deeply. Under s. 35 of the Constitution, when the Crown has adequately consulted in response to an unproven Aboriginal rights claim, a development may proceed without consent. Here, the Ktunaxa participated in extensive consultation and they received significant accommodations. The Ktunaxa were not seeking further modifications to the development, but rather a ban on permanent development. The Minister encountered a binary choice: approve or ban development. The SCC acknowledged that the Minister’s approval might seem tragic to the Ktunaxa, but until Aboriginal rights are proven at trial, “consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket.”

Concluding Thoughts

In the case of unproven Aboriginal claims, Ktunaxa provides guidance on the limits courts will place on (1) Charter-protected rights, and (2) the constitutional right to consultation by the Crown. Ktunaxa reinforces the SCC’s decision in Haida Nation that the duty to consult does not provide unsatisfied claimants a veto over development. In fact, when the Minister has undertaken deep consultation and accommodation efforts, the government may be entitled to approve a development project without consent. In this case, there is no clear winner, with both the developer and the Ktunaxa undoubtedly left feeling frustrated with the process.