Spiritual Sites And Ski Hills: Ktunaxa Nation v. British Columbia (Forest, Lands And Natural Resources Operations), 2017 SCC 54

The Supreme Court of Canada ("SCC") rendered its decision in Ktunaxa Nation v. British Columbia (Forest, Lands and Natural Resources Operations) on November 2, 2017. This decision has important implications for both project proponents and Aboriginal groups in Canada.

Background

The Ktunaxa National Council represents the four Ktunaxa communities in Canada: A·kisq̓nuknik̓ (Columbia Lake Indian Band), Yaqaón Nuñkiy (Lower Kootenay Indian Band), Aq'am (St. Mary's Indian Band) and Akan'kunik (Tobacco Plains Indian Band). The Ktunaxa traditional territory is said to cover lands in British Columbia, Alberta, Washington, Idaho, and Montana.

The dispute stems from a proposal by Glacier Resorts Ltd. ("Glacier") to build a year-round ski resort in the Jumbo Valley near Invermere, BC (the "Proposed Resort"). This led to decades of regulatory processes and negotiations between Glacier, the BC government and stakeholders (including the Ktunaxa and the Shuswap peoples who inhabit the Jumbo Valley). During this engagement, the Ktunaxa asserted that the Proposed Resort was located within an area of paramount spiritual significance known as Qat'muk. The Ktunaxa asserted that Qat'muk is home to an important population of grizzly bears and to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology.

Consultation followed and the original proposal was modified. While the Shuswap supported the modified proposal, the Ktunaxa were not satisfied and sought further consultation. Following further discussions, the Ktunaxa took the position that accommodation was impossible because allowing such development, and in particular permanent structures, would drive Grizzly Bear Spirit from Qat'muk and irrevocably impair their religious beliefs and render their related religious practices meaningless.

In 2012, the BC Minister of Forest, Lands, and Natural Resources (the "Minister") approved the building of the Proposed Resort. The Ktunaxa applied for judicial review of the Minister's decision, arguing that it violated their right to freedom of religion under s. 2(a) of the Charter of Rights and Freedoms, and breached the Crown's duty consult and accommodate under s. 35 of the Constitution Act, 1982.

Lower Court Decisions

At trial, the chambers judge dismissed the petition.[i] He held that:

s. 2(a) of the Charter did not confer a right to restrict the otherwise lawful use of land on the basis that such use would result in a loss of meaning to...