Two Constitutional Rights in One Decision: Supreme Court of Canada Decision Tackles Freedom of Religion & the Duty to Consult in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations)

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Two Constitutional Rights in One Decision: Supreme Court of Canada Decision Tackles Freedom of Religion & the Duty to Consult in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations)

November 7, 2017

By Harvey Morrison, at McInnes Cooper

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.

Seven of the nine Supreme Court judges confirmed that freedom of religion, as guaranteed by section 2(a) of the Charter, protects freedom of worship – but it does not extend to protect the object or spiritual focus of that worship. Two of the judges disagreed with this “restrictive” approach, taking the view that government action that takes away the spiritual significance of beliefs or practices amounts to interference with “an individual’s ability to act in accordance with his or her religious beliefs or practices.” But while this approach appears more sympathetic to Indigenous spirituality, the law of the land is that expressed by the decision of the majority of the judges.
All nine Supreme Court judges, however, agreed that in this case, the Minister’s decision that the government satisfied its duty to consult was reasonable. The decision does not break any new consultation “ground”; the Court has considered the duty to consult on many occasions since it first comprehensively outlined the consultation principles 2004. But this decision is a useful re-statement of the those governing principles, the fundamental requirement of which is good faith. Good faith requires both parties to work together in a process of “give and take” to attempt to reconcile their interests. It is also a reminder that the constitutionally required duty to consult and accommodate unproven Aboriginal claims is “a right to a process, not to a particular outcome”.

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:

They sincerely believe in a practice or belief with a “nexus” with religion. The Supreme Court decided the First Nation established this element. It was undisputed they sincerely believe in the existence and importance of Grizzly Bear Spirit. And the First Nation believed permanent development in Qat’muk would “drive this spirit from that place”. It was irrelevant that the Ktunaxa Nation’s knowledge keeper first came to this particular belief in 2004: “whether this belief is ancient or recent plays no part in our [freedom of religion] analysis. The Charter protects all sincere religious beliefs and practices, old or new.”
The government’s actions significantly interferes with their “ability to act in accordance with that practice or belief”. The First Nation’s freedom of religion claim, however, failed at this second element of the test: they were unable to prove the Minister’s decision to approve the project interfered with their freedom to believe in Grizzly Bear Spirit or to manifest that belief. The Supreme Court decided, by a majority of seven to two judges, the claim was beyond the scope of the Charter’s protection of freedom of religion, and declined to “extend” that protection to include protection for Grizzly Bear Spirit’s presence in Qat’muk. The Charter protects “the freedom of worship but does not protect the spiritual focal point of worship” or objects of belief – like Grizzly Bear Spirit.

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.

No Guarantee and No “Veto”. The Supreme Court noted that although the goal and the hope of the consultation process is to achieve agreement and reconciliation of Aboriginal and non-Aboriginal (including government) interests, this is not always possible. The Supreme Court confirmed that, “[t]he process is one of ‘give and take’ and outcomes are not guaranteed” and that the Constitution duty to consult, “does not give unsatisfied claimants a veto over development.” In short, where there has been adequate consultation, a development can proceed – even without an Indigenous group’s consent.
The role of administrative decision-makers is limited. The Supreme Court clarified that when dealing with a claim of breach of the duty to consult in judicial review proceedings (as in this case), courts must refrain from pronouncing on the validity of an Aboriginal rights claim (recall that the duty to consult arises in most cases with respect to Aboriginal rights claims that have not been proved). Aboriginal rights claims must be proved by proper and tested evidence that meet the legal tests in the context of a trial, not established as an “incident of administrative law proceedings” focussed on the adequacy of consultation and accommodation; permitting this “would invite uncertainty and discourage final settlement of alleged rights through the proper processes.” Administrative decision-makers (such as the Minister) are not generally empowered to decide the existence or scope of Aboriginal rights; they require specifically delegated statutory authority to do so. But they can assess the strength of unproved Aboriginal claims and the adverse impact of proposed government actions on them “to determine the depth of consultation required.”
The “uncertain interim”. Acknowledging that for this First Nation, the decision to approve the project may seem “unsatisfactory, indeed tragic”, the best available tools in the difficult period between Aboriginal claim assertion and resolution are consultation and accommodation. The Supreme Court confirmed an injunction (an order that prohibits an action) may be available to a First Nation to delay a project before it proceeds; but the solution is not for the courts to make “far-reaching constitutional declarations in the course of judicial review proceedings.” The Supreme Court observed that stakeholders should identify Aboriginal rights claims early in the process and define them as clearly as possible, which in most cases will lead to agreement and reconciliation; if it does not, mitigating potential adverse impacts on the asserted right ultimately requires resolving questions about the existence and scope of unsettled claims as expeditiously as possible.
There was sufficient consultation. Although the Supreme Court judges were divided on the scope of freedom of religion in this case, they unanimously agreed the Minister’s decision that the degree and scope of consultation was adequate and sufficient to satisfy Constitutional requirements was a reasonable one. Referring to the consultation process – which lasted 20 years in this case – the Supreme Court confirmed the First Nation played an active role in all phases of the lengthy regulatory process leading to the project approval, as a result of which the project plan was changed and issues discussed, and observed, “[progress was made and agreement seemed imminent.”
Please contact your McInnes Cooper lawyer or any member of the Aboriginal Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2017. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

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