Ktunaxa Nation v. British Columbia: The Duty To Consult And Protecting Religious Freedom Rights

On November 2, 2017, the Supreme Court of Canada released its decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. This case dealt with a novel argument related to the right to freedom of religion under the Canadian Charter of Rights and Freedoms and the interplay with the Crown's duty to consult and accommodate under section 35 of the Constitution Act, 1982.

The Ktunaxa Nation claimed that the Crown's decision to allow a ski resort development project violated their right to freedom of conscience and religion under the Charter. The Ktunaxa also claimed the Crown failed to meet its duty to consult and accommodate under section 35.

The Court dismissed the Ktunaxa's appeal, deciding that the Crown's approval did not violate the Ktunaxa's right to freedom of religion and the Crown had fulfilled its duty to consult. The Court emphasized that section 35 guarantees a process, not a result, and it does not give unsatisfied aboriginal rights claimants a veto.

History of the Dispute

The dispute centered on Glacier Resorts Ltd.'s plans to build a year-round ski resort in the Jumbo Valley in southeastern British Columbia. The Ktunaxa opposed the plans. They considered the Jumbo Valley—which they call Qat'muk—to be the home of the Grizzly Bear Spirit, and were concerned about the impact of development.

After nearly two decades of negotiations between Glacier, the government, and key stakeholders including the Ktunaxa, the B.C. government approved a Master Development Agreement with Glacier Resorts in 2012.

Late in that process, the Ktunaxa adopted the position that accommodation was impossible. They believed the project would cause irreparable harm to their relationship with the Grizzly Bear Spirit, since the development would drive the Spirit from Qat'muk, which would destroy the foundation for their spiritual belief. The Ktunaxa's religious beliefs would then be rendered devoid of religious significance and could not be passed on to future generations.

The Ktunaxa applied to court to review the approval, claiming:

the Crown's approval of the project violated their right to freedom of religion under section 2(a) of the Charter; and the Crown failed in its duty to consult under section 35 of the Constitution. The Ktunaxa's judicial review was dismissed, and so was the appeal to the British Columbia Court of Appeal.

The Supreme Court of Canada also dismissed the Ktunaxa's appeal. On the freedom of...