November 7, 2017
On November 2, 2017, the Supreme Court of Canada was faced with the Ktunaxa Nation’s claim that a Ministerial decision to approve a project breached two of its Constitutional rights. In dismissing the claim, the Supreme Court of Canada’s decision in Ktunaxa Nation v. British Columbia both clarified the scope of the Charter’s protection of religious freedom and offered useful guidance about how the consultation process must function in order to meet the requirements of the Constitutional duty to consult Aboriginal interests.
In Ktunaxa Nation v. British Columbia, the Ktunaxa Nation’s traditional territories include Qat’muk (an area near Invermere, B.C.). Qat’muk is home to Grizzly Bear Spirit, a central spirit in the First Nation’s religious beliefs. A developer applied for government approval to build a resort in Qat’muk. As part of the approval process, the government consulted the First Nation. The First Nation expressed concern about the project’s impact. The developer changed the plan to respond and although the First Nation was not satisfied, it still committed to further consultation. Very late in the process, the First Nation asserted accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk, permanently impairing its religious beliefs and practices. After failed efforts to continue consultation, the Minister of Forests, Lands and Natural Resources declared reasonable consultation had occurred and approved the project. The First Nation applied to the court for judicial review of the Minister’s approval decision, asking it to quash the approval on two grounds: first, the departure of Grizzly Spirit would remove the bases of their beliefs and render their practices futile, violating their Charter right to freedom of religion; second, the B.C. government breached its duty to consult and accommodate the First Nation. The Supreme Court of Canada upheld the lower courts’ dismissal of the Ktunaxa Nation’s claims:
Freedom of Religion. Section 2 of the Charter guarantees everyone’s “freedom of religion and conscience” and has two aspects: the freedom to hold religious beliefs and the freedom to manifest those beliefs. Claimants must prove two things to persuade a court that their freedom of religion was infringed:
Duty to Consult. The Supreme Court framed the question as whether the consultation process is consistent with the Crown’s honour – not whether the First Nation obtained the outcome it sought.
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