SUPREME
COURT OF CANADA
Citation:
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural
Resource Operations), 2017 SCC 54
|
Appeal heard: December
1, 2016
Judgment
rendered: November 2, 2017
Docket:
36664
|
Between:
Ktunaxa
Nation Council and Kathryn Teneese, on their own behalf and on behalf of all
citizens of the Ktunaxa Nation
Appellants
and
Minister
of Forests, Lands and Natural Resource Operations and Glacier Resorts Ltd.
Respondents
-
and -
Attorney
General of Canada, Attorney General of Saskatchewan, Canadian Muslim Lawyers
Association, South Asian Legal Clinic of Ontario, Kootenay Presbytery (United
Church of Canada), Evangelical Fellowship of Canada, Christian Legal
Fellowship, Alberta Muslim Public Affairs Council, Amnesty International
Canada, Te’mexw Treaty Association, Central Coast Indigenous Resource Alliance,
Shibogama First Nations Council, Canadian Chamber of Commerce, British Columbia
Civil Liberties Association, Council of the Passamaquoddy Nation at Schoodic,
Katzie First Nation, West Moberly First Nations and Prophet River First Nation
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Joint Reasons for
Judgment:
(paras. 1 to 115)
|
McLachlin C.J. and Rowe J. (Abella, Karakatsanis, Wagner,
Gascon and Brown JJ. concurring)
|
Partially
concurring reasons:
(paras. 116 to 156)
|
Moldaver J. (Côté J. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
ktunaxa nation v. b.c.
Ktunaxa Nation Council and
Kathryn Teneese, on their own behalf and
on behalf of all citizens of
the Ktunaxa Nation Appellants
v.
Minister of Forests, Lands and Natural
Resource Operations and Glacier
Resorts Ltd. Respondents
and
Attorney General of Canada,
Attorney General of Saskatchewan,
Canadian Muslim Lawyers Association,
South Asian Legal Clinic of Ontario,
Kootenay Presbytery (United Church of
Canada),
Evangelical Fellowship of Canada,
Christian Legal Fellowship,
Alberta Muslim Public Affairs Council,
Amnesty International Canada,
Te’mexw Treaty Association,
Central Coast Indigenous Resource
Alliance,
Shibogama First Nations Council,
Canadian Chamber of Commerce,
British Columbia Civil Liberties
Association,
Council of the Passamaquoddy Nation at
Schoodic,
Katzie First Nation, West Moberly First
Nations
and Prophet
River First Nation Interveners
Indexed as: Ktunaxa Nation v.
British Columbia (Forests, Lands and
Natural Resource Operations)
2017 SCC 54
File No.: 36664.
2016: December 1; 2017: November 2.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Constitutional
law — Charter of Rights — Freedom of religion — First Nation alleging that ski
resort project would drive spirit central to their religious beliefs from their
traditional territory — Provincial government approving ski resort despite
claim by First Nation that development would breach right to freedom of
religion — Whether Minister’s decision violates s. 2 (a) of Canadian
Charter of Rights and Freedoms .
Constitutional
law — Aboriginal rights — Crown — Duty to consult —Provincial government
approving ski resort despite claim by First Nation that development would
breach constitutional right to protection of Aboriginal interests —Whether
Minister’s decision that Crown had met duty to consult and accommodate was
reasonable — Constitution Act, 1982, s. 35 .
The
Ktunaxa are a First Nation whose traditional territories include an area in
British Columbia that they call Qat’muk. Qat’muk is a place of spiritual
significance for them because it is home to Grizzly Bear Spirit, a principal
spirit within Ktunaxa religious beliefs and cosmology. Glacier Resorts sought
government approval to build a year‑round ski resort in Qat’muk. The
Ktunaxa were consulted and raised concerns about the impact of the project, and
as a result, the resort plan was changed to add new protections for Ktunaxa
interests. The Ktunaxa remained unsatisfied, but committed themselves to
further consultation. Late in the process, the Ktunaxa adopted the position
that accommodation was impossible because the project would drive Grizzly Bear
Spirit from Qat’muk and therefore irrevocably impair their religious beliefs
and practices. After efforts to continue consultation failed, the respondent Minister
declared that reasonable consultation had occurred and approved the project.
The Ktunaxa brought a petition for judicial review of the approval decision on
the grounds that the project would violate their constitutional right to
freedom of religion, and that the Minister’s decision breached the Crown’s duty
of consultation and accommodation. The chambers judge dismissed the petition,
and the Court of Appeal affirmed that decision.
Held:
The appeal should be dismissed.
Per
McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Brown
and Rowe JJ.: The Minister’s decision does not violate the
Ktunaxa’s s. 2 (a) Charter right to freedom of religion. In
this case, the Ktunaxa’s claim does not fall within the scope of s. 2 (a)
because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom
to manifest those beliefs is infringed by the Minister’s decision to approve
the project.
To
establish an infringement of the right to freedom of religion, the claimant
must demonstrate (1) that he or she sincerely believes in a practice or
belief that has a nexus with religion, and (2) that the impugned state
conduct interferes, in a manner that is non‑trivial or not insubstantial,
with his or her ability to act in accordance with that practice or belief. In
this case, the Ktunaxa sincerely believe in the existence and importance of
Grizzly Bear Spirit. They also believe that permanent development in Qat’muk
will drive this spirit from that place.
The
second part of the test, however, is not met. The Ktunaxa must show that the
Minister’s decision to approve the development interferes either with their
freedom to believe in Grizzly Bear Spirit or their freedom to manifest that
belief. Yet the Ktunaxa are not seeking protection for the freedom to believe
in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek
to protect the presence of Grizzly Bear Spirit itself and the subjective
spiritual meaning they derive from it. This is a novel claim that would extend s. 2 (a)
beyond its scope and would put deeply held personal beliefs under judicial
scrutiny. The state’s duty under s. 2 (a) is not to protect the
object of beliefs or the spiritual focal point of worship, such as Grizzly Bear
Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such
beliefs and to manifest them in worship and practice or by teaching and
dissemination.
In
addition, the Minister’s decision that the Crown had met its duty to consult
and accommodate under s. 35 of the Constitution Act, 1982 was
reasonable. The Minister’s decision is entitled to deference. A court reviewing
an administrative decision under s. 35 does not decide the constitutional
issue de novo raised in isolation on a standard of correctness, and
therefore does not decide the issue for itself. Rather, it must ask whether the
decision maker’s finding on the issue was reasonable.
The
constitutional guarantee of s. 35 is not confined to treaty rights or to
proven or settled Aboriginal rights and title claims. Section 35 also
protects the potential rights embedded in as‑yet unproven Aboriginal
claims and, pending the determination of such claims through negotiation or
otherwise, may require the Crown to consult and accommodate Aboriginal
interests. This obligation flows from the honour of the Crown and is
constitutionalized by s. 35 .
In
this case, the Ktunaxa’s petition asked the courts, in the guise of judicial
review of an administrative decision, to pronounce on the validity of their
claim to a sacred site and associated spiritual practices. This declaration
cannot be made by a court sitting in judicial review of an administrative
decision. In judicial proceedings, such a declaration can only be made after a
trial of the issue and with the benefit of pleadings, discovery, evidence, and
submissions. Nor can administrative decision makers themselves pronounce upon
the existence or scope of Aboriginal rights without specifically delegated
authority. Aboriginal rights must be proven by tested evidence; they cannot be
established as an incident of administrative law proceedings that centre on the
adequacy of consultation and accommodation. To permit this would invite
uncertainty and discourage final settlement of alleged rights through the
proper processes. In the interim, while claims are resolved, consultation and
accommodation are the best available legal tools for achieving reconciliation.
The record here supports the
reasonableness of the Minister’s conclusion that the s. 35 obligation of
consultation and accommodation had been met. The Ktunaxa spiritual claims to
Qat’muk had been acknowledged from the outset. Negotiations spanning two
decades and deep consultation had taken place. Many changes had been made to
the project to accommodate the Ktunaxa’s spiritual claims. At a point when it
appeared all major issues had been resolved, the Ktunaxa adopted a new,
absolute position that no accommodation was possible because permanent
structures would drive Grizzly Bear Spirit from Qat’muk. The Minister sought to
consult with the Ktunaxa on the newly formulated claim, but was told that there
was no point in further consultation. The process protected by s. 35 was
at an end.
The
record does not suggest, conversely, that the Minister mischaracterized the
right as a claim to preclude development, instead of a claim to a spiritual
right. The Minister understood that this right entailed practices which
depended on the continued presence of Grizzly Bear Spirit in Qat’muk, which the
Ktunaxa believed would be driven out by the development. Spiritual practices
and interests were raised at the beginning of the process and continued to be
discussed throughout. Nor did the Minister misunderstand the Ktunaxa’s secrecy
imperative, which had contributed to the late disclosure of the true nature of
the claim: an absolute claim to a sacred site, which must be preserved and
protected from permanent human habitation. The Minister understood and accepted
that spiritual beliefs did not permit details of beliefs to be shared with
outsiders. Nothing in the record suggests that the Minister had forgotten this
fundamental point when he made his decision that adequate consultation had
occurred. In addition, the Minister did not treat the broader spiritual right
as weak. The Minister considered the overall spiritual claim to be strong, but
had doubts about the strength of the new, absolute claim that no accommodation
was possible because the project would drive Grizzly Bear Spirit from Qat’muk.
The record also does not demonstrate that the Minister failed to properly
assess the adverse impact of the development on the spiritual interests of the
Ktunaxa.
Ultimately,
the consultation was not inadequate. The Minister engaged in deep consultation
on the spiritual claim. This level of consultation was confirmed by both the
chambers judge and the Court of Appeal. Moreover, the record does not
establish that no accommodation was made with respect to the spiritual right.
While the Minister did not offer the ultimate accommodation demanded by the
Ktunaxa — complete rejection of the ski resort project — the Crown met its
obligation to consult and accommodate. Section 35 guarantees a process,
not a particular result. There is no guarantee that, in the end, the specific
accommodation sought will be warranted or possible. Section 35 does not
give unsatisfied claimants a veto. Where adequate consultation has occurred, a
development may proceed without consent.
Per Moldaver and Côté JJ.: The Minister reasonably
concluded that the duty to consult and accommodate the Ktunaxa under s. 35
of the Constitution Act, 1982 was met; however, the Minister’s decision
to approve the ski resort infringed the Ktunaxa’s s. 2 (a) Charter
right to religious freedom.
The
first part of the s. 2 (a) test is not at issue in this case. The
second part focuses on whether state action has interfered with the ability of
a person to act in accordance with his or her religious beliefs or practices.
Where state conduct renders a person’s sincerely held religious beliefs devoid
of all religious significance, this infringes a person’s right to religious
freedom. Religious beliefs have spiritual significance for the believer. When
this significance is taken away by state action, the person can no longer act
in accordance with his or her religious beliefs, constituting an infringement
of s. 2 (a).
This
kind of state interference is a reality where individuals find spiritual
fulfillment through their connection to the physical world. To ensure that all
religions are afforded the same level of protection, courts must be alive to
the unique characteristics of each religion, and the distinct ways in which
state action may interfere with that religion’s beliefs or practices. In many
Indigenous religions, land is not only the site of spiritual practices; land
itself can be sacred. As such, state action that impacts land can sever the
connection to the divine, rendering beliefs and practices devoid of spiritual
significance. Where state action has this effect on an Indigenous religion, it
interferes with the ability to act in accordance with religious beliefs and
practices.
In
this case, the Ktunaxa sincerely believe that Grizzly Bear Spirit inhabits
Qat’muk, a body of sacred land in their religion, and that the Minister’s
decision to approve the ski resort would sever their connection to Qat’muk and
to Grizzly Bear Spirit. As a result, the Ktunaxa would no longer receive
spiritual guidance and assistance from Grizzly Bear Spirit. Their religious
beliefs in Grizzly Bear Spirit would become entirely devoid of religious
significance, and accordingly, their prayers, ceremonies, and rituals
associated with Grizzly Bear Spirit would become nothing more than empty words
and hollow gestures. Moreover, without their spiritual connection to Qat’muk
and to Grizzly Bear Spirit, the Ktunaxa would be unable to pass on their
beliefs and practices to future generations. Therefore, the Minister’s decision
approving the proposed development interferes with the Ktunaxa’s ability to act
in accordance with their religious beliefs or practices in a manner that is
more than trivial or insubstantial.
The
Minister’s decision is reasonable, however, because it reflects a proportionate
balancing between the Ktunaxa’s s. 2 (a) Charter right and
the Minister’s statutory objectives: to administer Crown land and dispose of it
in the public interest. A proportionate balancing is one that gives effect as
fully as possible to the Charter protections at stake given the
particular statutory mandate. When the Minister balances the Charter protections
with these objectives, he must ensure that the Charter protections are
affected as little as reasonably possible in light of the state’s particular
objectives.
In
this case, the Minister did not refer to s. 2 (a) explicitly in his
reasons for decision; however, it is clear from his reasons that he was alive
to the substance of the Ktunaxa’s s. 2 (a) right. He
recognized that the development put at stake the Ktunaxa’s spiritual connection
to Qat’muk.
In
addition, it is implicit from the Minister’s reasons that he proportionately
balanced the Ktunaxa’s s. 2 (a) right with his statutory objectives.
The Minister tried to limit the impact of the development on the substance of
the Ktunaxa’s s. 2 (a) right as much as reasonably possible given
these objectives. He provided significant accommodation measures that
specifically addressed the Ktunaxa’s spiritual connection to the land.
Ultimately, however, the Minister had two options before him: approve the
development or permit the Ktunaxa to veto the development on the basis of their
freedom of religion. Granting the Ktunaxa a power to veto development over the
land would effectively give them a significant property interest in Qat’muk —
namely, a power to exclude others from constructing permanent structures on
public land. This right of exclusion would not be a minimal or negligible
restraint on public ownership. It can be implied from the Minister’s
reasons that permitting the Ktunaxa to dictate the use of a large tract of land
according to their religious belief was not consistent with his statutory
mandate. Rather, it would significantly undermine, if not completely
compromise, this mandate. In view of the options open to the Minister, his
decision was reasonable, and amounted to a proportionate balancing.
Cases Cited
By McLachlin C.J. and Rowe J.
Applied:
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Haida Nation v.
British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Referred to:
Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551;
Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015]
1 S.C.R. 613; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015]
2 S.C.R. 3; Saskatchewan (Human Rights Tribunal) v.
Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Multani v. Commission
scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; R.
v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, rev’d R. v. Edwards Books
and Art Ltd., [1986] 2 S.C.R. 713; Reference re Public Service Employee
Relations Act (Alta.), [1987] 1 S.C.R. 313; Health Services and Support
— Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,
[2007] 2 S.C.R. 391; Divito v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; India v. Badesha,
2017 SCC 44; S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012]
1 S.C.R. 235; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC
37, [2009] 2 S.C.R. 567; Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine
v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650; R. v. Van der
Peet, [1996] 2 S.C.R. 507; Delgamuukw v. British Columbia, [1997] 3
S.C.R. 1010; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; Tsilhqot’in
Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Beckman v.
Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103.
By Moldaver J.
Applied:
Doré v. Barreau du Québec,
2012 SCC 12, [2012] 1 S.C.R. 395; Referred to: Loyola High School v. Quebec (Attorney General), 2015 SCC
12, [2015] 1 S.C.R. 613; Figueroa v. Canada (Attorney General),
2003 SCC 37, [2003] 1 S.C.R. 912; Reference re Prov. Electoral
Boundaries (Sask.), [1991] 2 S.C.R. 158; R. v. Big M Drug Mart Ltd., [1985] 1
S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Multani v.
Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R.
256; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009]
2 S.C.R. 567; S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012]
1 S.C.R. 235; Mouvement laïque québécois v.
Saguenay (City), 2015 SCC 16, [2015] 2
S.C.R. 3; Newfoundland and Labrador Nurses’ Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC
62, [2011] 3 S.C.R. 708; Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; R. v. Van der
Peet, [1996] 2 S.C.R. 507.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 2 (a).
Constitution Act, 1982, s. 35 .
Environmental Assessment Act, S.B.C.
1994, c. 35.
Environmental Assessment Act, S.B.C.
2002, c. 43.
Land Act, R.S.B.C. 1996, c. 245, ss. 4, 11(1).
Ministry of Lands, Parks and Housing Act, R.S.B.C.
1996, c. 307, s. 5(b).
Treaties and Other International Instruments
American Convention on Human Rights, 1144
U.N.T.S. 123, art. 12(1), (3).
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 [European Convention on Human Rights], art. 9(1).
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, art. 18(1).
Universal Declaration of Human Rights,
G.A. Res. 217 A (III), U.N. Doc.
A/810, at 71 (1948), art. 18.
Authors Cited
Dyzenhaus,
David. “The Politics of Deference: Judicial Review and Democracy”, in Michael
Taggart, ed., The Province of Administrative Law. Oxford: Hart, 1997,
279.
Ross,
Michael L. First Nations Sacred Sites in Canada’s Courts. Vancouver: UBC
Press, 2005.
Ziff,
Bruce. Principles of Property Law, 6th ed. Toronto: Carswell, 2014.
APPEAL
from a judgment of the British Columbia Court of Appeal (Lowry, Bennett and
Goepel JJ.A.), 2015 BCCA 352, 387 D.L.R. (4th) 10, 78 B.C.L.R. (5th) 297,
376 B.C.A.C. 105, 646 W.A.C. 105, 89 Admin. L.R. (5th) 63, 93 C.E.L.R. (3d) 1, [2015]
4 C.N.L.R. 199, 339 C.R.R. (2d) 183, [2016] 3 W.W.R. 423, [2015] B.C.J. No. 1682
(QL), 2015 CarswellBC 2215 (WL Can.), affirming a decision of Savage J., 2014
BCSC 568, 306 C.R.R. (2d) 211, 82 Admin. L.R. (5th) 117, 86 C.E.L.R. (3d) 202, [2014]
4 C.N.L.R. 143, [2014] B.C.J. No. 584 (QL), 2014 CarswellBC 901 (WL Can.),
dismissing an application for judicial review of a decision of the Minister to
approve a ski resort. Appeal dismissed.
Peter Grant, Jeff
Huberman, Karenna
Williams and Diane Soroka, for the appellants.
Jonathan G. Penner and Erin Christie, for the respondent the
Minister of Forests, Lands and Natural Resource Operations.
Gregory J. Tucker, Q.C., and Pamela E. Sheppard,
for the respondent Glacier Resorts Ltd.
Mitchell R. Taylor, Q.C., and Sharlene Telles‑Langdon, for the intervener the
Attorney General of Canada.
Richard James Fyfe, for the intervener the Attorney General of Saskatchewan.
Justin Safayeni and Khalid Elgazzar, for the interveners the Canadian Muslim
Lawyers Association, the South Asian Legal Clinic of Ontario and the Kootenay
Presbytery (United Church of Canada).
Albertos Polizogopoulos and Derek Ross, for the interveners the
Evangelical Fellowship of Canada and the Christian Legal Fellowship.
Written submissions
only by Avnish Nanda, for the intervener the Alberta
Muslim Public Affairs Council.
Joshua Ginsberg and Randy
Christensen,
for the intervener Amnesty International Canada.
Robert J. M. Janes, Q.C., and Claire
Truesdale,
for the intervener the Te’mexw Treaty Association.
Written submissions
only by Lisa C. Fong, for the intervener Central
Coast Indigenous Resource Alliance.
Senwung Luk and Krista
Nerland, for
the intervener the Shibogama First Nations Council.
Neil Finkelstein, Brandon
Kain and Bryn
Gray, for
the intervener the Canadian Chamber of Commerce.
Jessica Orkin and Adriel
Weaver, for
the intervener the British Columbia Civil Liberties Association.
Paul Williams, for the intervener the Council of the Passamaquoddy Nation at
Schoodic.
Written submissions
only by John Burns and Amy Jo Scherman, for the intervener the Katzie
First Nation.
Written submissions
only by John W. Gailus and Christopher G.
Devlin,
for the interveners the West Moberly First Nations and the Prophet River First
Nation.
The judgment of McLachlin C.J and Abella,
Karakatsanis, Wagner, Gascon, Brown and Rowe JJ. was delivered by
The Chief Justice and
Rowe J. —
I.
Introduction
[1]
The issue in this case is whether the British
Columbia Minister of Forests, Lands and Natural Resource Operations
(“Minister”) erred in approving a ski resort development, despite claims by the
Ktunaxa that the development would breach their constitutional right to freedom
of religion and to protection of Aboriginal interests under s. 35 of the Constitution
Act, 1982 .
[2]
The appellants represent the Ktunaxa people. The
Ktunaxa’s traditional territories are said to consist of land that straddles
the international boundary between Canada and the United States, comprised of
northeastern Washington, northern Idaho, northwestern Montana, southwestern
Alberta and southeastern British Columbia.
[3]
This case concerns a proposed development in an
area the Ktunaxa call Qat’muk. This area is located in a Canadian valley in the
northwestern part of the larger Ktunaxa territory, the Jumbo Valley, about 55
kilometres west of the town of Invermere, B.C.
[4]
The respondent Glacier Resorts Ltd. (“Glacier
Resorts”), wishes to build a year-round ski resort in Qat’muk with lifts to
glacier runs and overnight accommodation for guests and staff. For more than
two decades, Glacier Resorts has been negotiating with the B.C. government and
stakeholders, including the Aboriginal peoples who inhabit the valley, the
Ktunaxa and the Shuswap, on the terms and conditions of the development.
[5]
Early on in the process, the Ktunaxa and Shuswap
peoples raised concerns about the impact of the resort project. The Ktunaxa
asserted that Qat’muk was a place of spiritual significance for them. Notably,
it is home to an important population of grizzly bears and to Grizzly Bear
Spirit, or Kⱡawⱡa
Tukⱡuⱡakʔis, “a principal spirit
within Ktunaxa religious beliefs and cosmology”: A.F., at para. 18.
[6]
Consultation ensued, leading to significant
changes to the original proposal. The Shuswap declared themselves satisfied
with the changes and indicated their support for the proposal given the
benefits it would bring to their people and the region. The Ktunaxa were not
satisfied, but committed themselves to further consultation to remove the
remaining obstacles and find mutually satisfactory accommodation. Lengthy
discussions ensued, and it seemed agreement would be achieved. Then, late in
the process, the Ktunaxa adopted an uncompromising position — that
accommodation was impossible because a ski resort with lifts to glacier runs
and permanent structures would drive Grizzly Bear Spirit from Qat’muk and
irrevocably impair their religious beliefs and practices. After fruitless efforts
to revive the consultation process and reach agreement, the government declared
that reasonable consultation had occurred and approved the project.
[7]
The appellants, the Ktunaxa Nation Council and
the Chair of the Council, Kathryn Teneese, brought proceedings in judicial
review before the British Columbia Supreme Court to overturn the approval by
the Minister of the ski resort on two independent grounds: first, that the
project would violate the Ktunaxa’s freedom of religion under s. 2 (a) of
the Canadian Charter of Rights and Freedoms ; and second, that the
government breached the duty of consultation and accommodation imposed on the
Crown by s. 35 of the Constitution Act, 1982 . The chambers judge
dismissed the petition for judicial review, and the Court of Appeal affirmed
his decision. The Ktunaxa now appeal to this Court.
[8]
We would dismiss the appeal. We conclude that
the claim does not engage the right to freedom of conscience and religion under
s. 2 (a) of the Charter . Section 2 (a) protects the freedom
of individuals and groups to hold and manifest religious beliefs: R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 336. The Ktunaxa’s claim does
not fall within the scope of s. 2 (a) because neither the Ktunaxa’s
freedom to hold their beliefs nor their freedom to manifest those beliefs is
infringed by the Minister’s decision to approve the project.
[9]
We also conclude that the Minister, while bound
by s. 35 of the Constitution Act, 1982 to consult with the Ktunaxa in an
effort to find a way to accommodate their concerns, did not act unreasonably in
concluding that the requirements of s. 35 had been met and approving the
project.
[10]
We arrive at these conclusions cognizant of the
importance of protecting Indigenous religious beliefs and practices, and the
place of such protection in achieving reconciliation between Indigenous peoples
and non-Indigenous communities.
II.
Facts
[11]
The Jumbo Valley and Qat’muk are located in the
traditional territory of the Ktunaxa. The Ktunaxa believe that Grizzly Bear
Spirit inhabits Qat’muk. It is undisputed that Grizzly Bear Spirit is central
to Ktunaxa religious beliefs and practices.
[12]
The Jumbo Valley has long been used for
heli-skiing, which involves flying skiers to the top of runs by helicopter,
whence they ski to the valley floor. In the 1980s, Glacier Resorts became
interested in building a permanent ski resort on a site near the north end of
the valley and sought government approval of the project.
[13]
The regulatory process for approval of the ski
resort was a protracted matter, involving a number of cascading processes: (1)
The Commercial Alpine Ski Policy (“CASP”) process to determine sole proponent
status; (2) The Commission on Resources and the Environment (“CORE”) process to
determine best uses of the land; (3) An environmental assessment process to
resolve issues related to environmental, wildlife and cultural impact and
culminating in an Environmental Assessment Certificate (“EAC”); and (4) submission of a Master Plan which, if approved, would lead
to a Master Development Agreement (“MDA”) between the developer and the
government. These processes involved public consultation, and the Ktunaxa
participated at every stage. In the course of the various reviews, many changes
were made to the original plan. The entire process, until the Minister
determined consultation was adequate, took place from 1991 to 2011 — over 20
years.
[14]
Until 2005, the Ktunaxa participated in the
regulatory processes jointly with the Shuswap as part of the Ktunaxa/Kinbasket
Tribal Council (“KKTC”). However, in 2005, the Shuswap parted company with the
Ktunaxa over the proposed ski resort and left the KKTC. The Shuswap support the
project, believing their interests have been reasonably accommodated and that
the project will be good for their community. The Ktunaxa, by contrast, say
their interests cannot be accommodated and demand the project’s rejection.
[15]
Adequacy of consultation is a central issue in
this appeal. It is therefore necessary to set out in some detail what occurred
at each step of the regulatory process.
A.
Stage One:
The CASP Process
[16]
In 1991, Glacier Resorts filed a formal proposal
to build a year-round ski resort in the upper Jumbo Valley. The government
conducted public hearings on the project under the CASP, the first phase in the
regulatory approval process. The predecessor of the appellants, the KKTC,
participated in public hearings in the fall of 1991. After a call for
proposals, Glacier Resorts was granted sole proponent status and moved up to
the next step on the regulatory ladder.
B.
Stage Two: The Land Use
or CORE Process
[17]
In 1993 and 1994, the second phase of the
regulatory process began. The government conducted a site utilization review
under the CORE process, with the goal of producing a new land use plan for the
region focusing specifically on construction of the ski resort. The CORE
process involved public hearings, which the KKTC attended as an observer. In
1994, the CORE process concluded with a report that assigned very high
recreational and tourism values to the area of the proposed ski resort and
recommended that the approval process for the resort include a statutory
environmental assessment.
[18]
In March 1995, the government released a summary
of the CORE east Kootenay Land Use Plan and west Kootenay-Boundary Land Use
Plan, identifying a ski resort development as an acceptable land use of the
upper Jumbo Creek Valley. In July 1995, the government and Glacier Resorts
entered into an interim agreement pursuant to the CASP, and the third step on
the regulatory ladder, review under the Environmental Assessment Act,
S.B.C. 1994, c. 35, began.
C.
Stage Three: The Environmental Assessment
Process
[19]
The environmental assessment process lasted
almost a decade, from 1995 to 2004. The KKTC, representing both the Ktunaxa and
the Shuswap peoples, and supported by government funding, was extensively
involved in the environmental assessment process for the ski resort. It was
invited to participate in the technical review committee and to comment on the
project report. It raised the issue of “sacred values” in the valley, which
were discussed in the “First Nations Socio-Economic Assessment: Jumbo Glacier
Resort Project, A Genuine Wealth Analysis”, a 2003 report of consultants
retained by the B.C. government’s Environmental Assessment Office (“EAO”).
[20]
In parallel, Glacier Resorts submitted the
information required to complete the environmental review under the new Environmental
Assessment Act, S.B.C. 2002, c. 43, in a comprehensive “Project Report” in
December 2003 that was accepted by the EAO in the following months.
[21]
In response to this report, the KKTC submitted a
document to the EAO entitled “Jumbo Glacier Resort Project: Final Comments on
Measures Proposed to Address Issues Identified by the Ktunaxa Nation” stating
that the Jumbo Valley area is invested with sacred values, and Glacier Resorts
should be required to negotiate an Impact Management and Benefits Agreement
(“IMBA”) to mitigate the potential impact of the ski resort. The KKTC submitted
detailed comments, under protest, on the measures proposed by the EAO to
address the concerns of the valley’s Indigenous inhabitants.
[22]
On October 4, 2004, an EAC was issued, approving
the development subject to numerous conditions. Among them was a requirement
that Glacier Resorts negotiate with the KKTC and attempt to conclude an IMBA
before the next stage of the regulatory process. The KKTC did not seek judicial
review of the conditional EAC. At this point, from the government’s
perspective, the consultation was proceeding smoothly toward mutually
acceptable accommodation.
D.
Stage Four: Development of a Resort Master Plan
[23]
The regulatory process moved to the fourth stage
— the development of a Master Plan and an MDA for the ski resort.
[24]
Glacier Resorts submitted a revised draft Master
Plan in 2005. The process of reviewing this plan took place from December 2005
to July 2007.
[25]
At the outset of the review process, the
government offered to enter into additional consultations with the Ktunaxa
Nation Council, which was formed following the withdrawal of the Shuswap from
the KKTC. In June 2006, a consultant retained by the Ktunaxa and funded by the
government prepared a “Gap Analysis” to identify what the Ktunaxa considered to
be the outstanding issues for discussion. The Gap Analysis highlighted the need
for further information to facilitate discussion on: (1) contemporary land and
resource use by the Ktunaxa of the Jumbo Valley; (2) the effectiveness of
proposed mitigation measures to reduce disturbance, displacement, and mortality
impacts to key wildlife populations from road traffic on the access road; and
(3) project-induced socio-economic effects to the regional economy, including
land use and cost of living that might affect Ktunaxa well-being. One of the 34
issues identified in the Gap Analysis was that the Jumbo Valley is an “area of
cultural significance and has sacred values”: chambers judge’s reasons, 2014
BCSC 568, 306 C.R.R. (2d) 211, at para. 69. In this regard, the analysis stated
that “the cultural impacts remain unassessed” (ibid.).
[26]
The Ktunaxa met with the Minister and they
agreed on further consultation built around the Gap Analysis. As part of this
process, the cultural significance/sacred values issue was discussed at the
“Land Issues” workshop held on October 12 and 13, 2006 in Cranbrook, B.C.
Following the workshop, the Ktunaxa consultant circulated a document entitled
“Working Outline: Ktunaxa-British Columbia Accommodation”, which identified the
cultural and sacred significance of the valley as an issue to be addressed, and
suggested a conceptual framework for accommodating the Ktunaxa land use
concerns through (a) a fee simple land transfer to the Ktunaxa; (b) the
establishment of a land reserve; and (c) the establishment of a conservancy
area in proximity to the ski-run site. The land use issues workshop was
followed by workshops in November and December 2006 and January 2007. These
addressed grizzly bear, other wildlife, and residual issues.
[27]
In November 2006, prospects for agreement on
accommodation looked bright. The Minister received a copy of a letter where the
Ktunaxa informed Glacier Resorts that they had made “considerable progress in
setting up a process for the negotiation of an [IMBA]”: chambers judge’s
reasons, at para. 76. Only two issues appeared to stand in the way of final
agreement — “funding” and “the outstanding issue of unpaid monies” (ibid.).
In April 2007, Glacier Resorts wrote the Minister that it believed it had
reached an “agreement in principle” with the Ktunaxa (ibid.). On July
12, the Minister approved a Master Plan, which outlined the nature, scope and
pace of the proposed development, identified land tenure requirements, and
incorporated recommendations arising from consultation with Glacier Resorts,
the public and First Nations and from the environmental review process.
[28]
The Minister advised the Ktunaxa that Master
Plan approval did not preclude additional mitigation measures based on ongoing
consultation. In the months following the approval, the discussion turned to
economic issues. The Minister made an accommodation proposal to the Ktunaxa in
December 2007, which included $650,000 in economic benefits to be taken in cash
or Crown land, plus nine non-financial accommodations. In February 2008, the
Ktunaxa rejected the proposed accommodation on the basis that (1) the financial
component was “grossly insufficient” and (2) it was inappropriate for the
Minister to provide identical financial accommodation to the Shuswap, given the
Ktunaxa’s “far greater history in the Jumbo area”: chambers judge’s reasons, at
para. 82. The rejection letter did not mention the sacred nature of the Jumbo
Valley or Grizzly Bear Spirit.
[29]
The Minister came back in September 2008 with a
second offer of accommodation to the Ktunaxa, in the form of revenue sharing in
an Economic and Community Development Agreement. The Ktunaxa rejected this
proposal in December. While the negotiations suggested that an agreement could
be reached regarding the construction of the ski resort project, the Ktunaxa
rejected this proposal on the basis that the Jumbo Valley is a “place unique
and sacred” to them: chambers judge’s reasons, at para. 83. Again, there was no
special mention of Grizzly Bear Spirit.
[30]
Discussions continued. In February 2009, the
Ktunaxa gave formal notice to the Minister that they wished to enter into a
process to negotiate an accommodation and benefits agreement. In April, the
Minister accepted and offered additional capacity funding for the process. In
May, the Ktunaxa provided the Minister with a list of outstanding issues and
possible accommodation measures to be discussed, including land transfers, land
reserves, a wildlife conservancy, development-free buffer zones beside the
access road, access rights in the controlled recreation area, a stewardship
framework for economic compensation, revenue sharing, ongoing supervision of
environmental commitments, and other measures. The Ktunaxa did not place the
sacred nature of the Jumbo Valley on the list of outstanding issues.
[31]
On June 3, 2009, the Minister advised the
Ktunaxa that, in his opinion, a reasonable consultation process had occurred
and that most of the outstanding issues were “primarily interest-based rather
than legally driven by asserted Aboriginal rights and title claims”: chambers
judge’s reasons, at para. 86. Accordingly, he was of the view that approval for
the resort could be given. The Minister expressed the intention to continue
negotiating a benefits agreement with the Ktunaxa.
[32]
At this point, the big issues appeared to have
been resolved. In deference to the Ktunaxa claim, the MDA changed the scope of
the proposed development and added new protections for Ktunaxa interests. The
size of the controlled recreational area was reduced by approximately 60% and
the total resort area was reduced to approximately 104 hectares. Protections
for Ktunaxa access and activities were put in place, and environmental
protections were established.
[33]
To accommodate the Ktunaxa’s spiritual concerns,
changes had been proposed to provide special protection of grizzly bear
habitat:
· The lower Jumbo Creek area was
removed from the recreation area because it was perceived as having greater potential visitation from grizzly
bears;
· Ski lifts were removed
on the west side of the valley, where impact to grizzly
bear habitat was expected
to be greatest; and
· The province committed to pursuing a Wildlife Management Area to address potential impacts in relation
to grizzly bears and Aboriginal claims relating to the
spiritual value of the valley.
[34]
On June 8, 2009, five days after the Minister
had concluded that all major issues had been resolved, the Ktunaxa responded
with a table of outstanding concerns. They did not list the sacred nature of
the area or a threat to the grizzly bear population among their concerns.
[35]
At meetings on June 9 and 10, however, the
Ktunaxa took a very different and uncompromising position regarding the
spiritual value of Qat’muk. They asserted that the consultation process was
deficient, not because interest-based issues like money and land reserves had
not been concluded, but because the process had not properly considered
information that the Jumbo Valley was a sacred site. They advised the Minister
that only certain members of the community, knowledge keepers, possessed
information about these values. Elder Chris Luke Sr. was better placed to speak
to the issue. The Minister agreed to meet Mr. Luke on June 22, 2009 but the
meeting did not proceed on that date. The Minister agreed to extend the
consultation process with the Ktunaxa until at least December 2009 to
specifically address the issue of the sacred nature of the Jumbo Valley.
[36]
After ongoing efforts to arrange a meeting about
sacred values, the Minister was finally able to meet with the Ktunaxa and Mr.
Luke on September 19, 2009 in Cranbrook, B.C. Mr. Luke, through translators,
advised the Minister that Qat’muk was “a life and death matter”, that “Jumbo is
one of the major spiritual places”, and that to say the sacredness of the area
for the Ktunaxa was important would be an understatement: chambers judge’s
reasons, at para. 94. He stated that any movement of earth and the construction
of permanent structures would desecrate the area and destroy the valley’s
spiritual value. The Ktunaxa at the meeting told the Minister that there was no
middle ground regarding the proposed resort. Simply put, no accommodation was
possible. The Ktunaxa confirmed this position in a second meeting in Creston,
B.C. on December 7, 2009. It emerged that the revelation that led to the
position that permanent structures would desecrate and irrevocably devalue the
sacred site came to Mr. Luke in 2004, but that health problems and secrecy
concerns had prevented him from disclosing the revelation to others until 2009.
[37]
The Minister persisted. After further study of
the Ktunaxa’s spiritual claims, on June 11, 2010 he sent the Ktunaxa a 71-page
draft “Consultation/ Accommodation Summary” that included seven pages devoted
to describing the consultation and accommodation specifically related to the
Ktunaxa’s assertions regarding the sacred nature of the Jumbo Valley and
invited the Ktunaxa’s comments. He met with the Ktunaxa on July 8, 2010 and
revisions were made to the document.
[38]
The Ktunaxa responded with a 40-page document
that devoted the first page and a half to sacred values. A few months later, in
November 2010, the Ktunaxa issued the “Qat’muk Declaration” — a unilateral
declaration of rights based on “pre-existing sovereignty”. The Qat’muk
Declaration mapped an area in which the Ktunaxa would not permit development.
No disturbance or alteration of the ground would be permitted within an area
identified as the “refuge area”. Construction of buildings with permanent
foundations or permanent human habitation was forbidden within the refuge area
and the access road and buffer area. This amounted to saying that the resort
could not proceed, as the proposed resort was partially within the refuge area
and its access road ran through the buffer area.
[39]
Consistent with the Qat’muk Declaration, the
Ktunaxa now took the position that negotiations were over. The only point of
further discussion was to make decision makers understand why the proposed
resort could not proceed. The Minister continued to explore potential
mitigation and accommodation measures through additional consultations, without
success. Negotiations were at an end.
[40]
On March 20, 2012, the Minister signed the MDA
with Glacier Resorts. The MDA contained a number of measures responding to
concerns raised by the Ktunaxa during the consultations: chambers judge’s
reasons, at paras. 236-39.
[41]
In summary, the Ktunaxa played an active part in
all phases of the lengthy regulatory process leading to the approval of the
resort project. As a result of the consultation that occurred during the
regulation process, the resort plan was significantly reduced in scope; safeguards
for the grizzly bear population and the spiritual interests of the Ktunaxa were
put in place; and economic and interest-based issues, including compensation,
were discussed. Areas of significant frequentation by grizzly bears were
removed from the project. Progress was made and agreement seemed imminent.
[42]
This trajectory toward accommodation ended in
2010, with the issuance of the Qat’muk Declaration: Schedule “E” of 2014 BCSC
568, at pp. 115-16 (CanLII). The Ktunaxa said at the September 2009 meeting
that their spiritual concerns could not be accommodated. The 2010 Qat’muk
Declaration unequivocally changed the process from a search for accommodation
to rejection of the entire project; from a search for protection of spiritual
values inhering in the valley and the grizzly bear population, to the position
that any permanent structures on the proposed resort site would drive out
Grizzly Bear Spirit and destroy the foundation of Ktunaxa spiritual practice.
[43]
The stance taken by the Ktunaxa in September
2009 and again in late 2010 with the issuance of the Qat’muk Declaration
amounted, in effect, to a different and uncompromising claim regarding suitable
accommodation. The claim now was not a claim to generalized spiritual values
that could be accommodated by measures like land reserves, economic payments,
and environmental protections. Instead, it was an absolute claim to a sacred
site, which must be preserved and protected from permanent human habitation. To
identify this claim — which first arose in September 2009 and was affirmed in
December 2009 and again by the Qat’muk Declaration — we refer to it below as
the “Late-2009 Claim”. There was no way the proposed resort could be reconciled
with this claim. The Minister made efforts to continue consultation, but, not surprisingly,
they failed. In 2011, the Minister concluded that sufficient consultation had
occurred and approved the resort development.
III.
Decisional History
A.
The Minister’s Rationale
[44]
On March 20, 2012, the Minister approved the
resort MDA and issued the Rationale for his decision: Schedule “F” of 2014 BCSC
568, at pp. 117-24 (CanLII) (“Rationale”). The Rationale in turn referenced the
detailed Consultation/Accommodation Summary, which was finalized in March 2011:
see R.R. (Minister), at pp. 66-154.
[45]
The Minister stated that while the Aboriginal
claims to the area remained to be proven, he was required to give them due
respect and recognition, and consult with the groups with a view to
accommodating their interests. The Shuswap had concluded that sufficient consultation
had occurred, but the Ktunaxa had not.
[46]
The Minister stated that he recognized the
genuinely sacred values at stake for the Ktunaxa leadership and knowledge
keepers. He stated that it was not clear whether the Ktunaxa spiritual claims
would be found to be a constitutionally protected right or whether the claimed
right could be reconciled with other claimed Aboriginal rights and Ktunaxa
access to the valley for a variety of traditional and modern uses, including
hunting, gathering, and fishing. He viewed the claim as weak, due to lack of
indication that the claimed right was part of an Aboriginal tradition,
practice, or activity integral to the Ktunaxa culture, and the fact that
details of the spiritual interest were not shared with or known to the general
Ktunaxa population. (The latter point must refer to the Late-2009 Claim, since
the more general spiritual claims that had been advanced from the start of the
process were broadly known and shared.)
[47]
The Minister reviewed the extensive record of
consultation with the Ktunaxa over the past two decades, and noted the many
accommodations and adjustments that had been made in an effort to accommodate
their interests. These included a 60% reduction in the resort development area,
on-site environmental monitors, continued use of the area for traditional
practices, and measures designed to reduce the impact of the development on
grizzly bears. The lower Jumbo Creek area and a ski lift on the west side of
the valley had been removed from the development because of perceived greater
visitation by grizzly bears in these areas. A wildlife management area had been
established to address potential impacts in relation to grizzly bears and the
spiritual value of the valley. And the province committed to continue to proactively
manage the grizzly bear population through existing legislation and policies.
The Minister stated in his Rationale:
For these reasons I have concluded that, on balance, the commitments and strategies in place are reasonable and minimize
the potential impact to the environment
and specifically, to grizzly bear
habitat.
[p. 124]
[48]
The Minister concluded that overall,
consultation had been at the “deep end of the consultation spectrum” (p. 123).
This, combined with the accommodation measures put in place, was adequate “in
respect of those rights for which the strength of claim is strong, and for
which potential impacts of the project could be significant” (ibid.).
The extensive accommodation measures relating to the continued ability of the
Ktunaxa to continue to exercise their Aboriginal rights, balanced against the
societal benefits of the project ($900 million in capital investment and 750 to
800 permanent, direct jobs), were reasonable.
[49]
Noting once again the extensive consultation and
assessment processes that had taken place, the Minister stated that he had
decided to approve the MDA for the Jumbo Glacier Resort.
B.
The Chambers Judge’s Reasons
[50]
The Ktunaxa sought judicial review of the
Minister’s decision. They filed a petition, claiming the decision violated
their freedom of religion guaranteed by s. 2 (a) of the Charter ,
and breached the Crown’s duty to consult and accommodate their Aboriginal
rights under s. 35 of the Constitution Act, 1982 .
[51]
The chambers judge, Savage J. (as he then was),
dismissed the petition. On the Charter claim, he held that s. 2 (a)
protects against state coercion or constraint on individual conduct, but does
not encompass “subjective loss of meaning” to a religion, without associated
coercion or constraint on conduct (para. 299). He therefore rejected the claim
that the state had a duty under s. 2 (a) to stop the development because
the Ktunaxa believe it would undermine their religious beliefs and practices.
[52]
The chambers judge went on to say that if he
were wrong in this conclusion about the scope of s. 2 (a), the Minister’s
actions and accommodations represented a reasonable balancing of the s. 2 (a)
value and the statutory objectives, and thus did not unreasonably trench on
freedom of religion.
[53]
On the issue of consultation, the chambers judge
found that the consultation process undertaken by the Minister was reasonable
and appropriate, and that the Minister’s proposed accommodations fell within a
range of reasonable responses which upheld the honour of the Crown and satisfied
the Crown’s duty to consult and accommodate under s. 35 of the Constitution
Act, 1982 .
C.
The Court of Appeal
[54]
The Court of Appeal dismissed the appeal: 2015
BCCA 352, 387 D.L.R.
(4th) 10.
[55]
The Court of Appeal held that the Minister’s
decision did not violate the Ktunaxa’s right to freedom of religion under s. 2 (a)
of the Charter . The chambers judge’s view that s. 2 (a) protected
only against state coercion or constraint on individual conduct was too narrow;
s. 2 (a) freedom implies the vitality of a religious community as a
whole. The proper test was whether “the subjective loss of meaning more than
trivially or substantially interfere[d] with the communal dimension of
the s. 2 (a) right by diminishing the vitality of the Ktunaxa religious
community through a disruption of the ‘deep linkages’ between the asserted
religious belief and its manifestation through communal Ktunaxa institutions”:
para. 67 (emphasis in original). However, protection of the communal dimension
of freedom of religion does not extend to “restraining and restricting the
behaviour of others who do not share that belief in the name of preserving
subjective religious meaning” (para. 73). The court found that the Ktunaxa
cannot, in the name of their own religious freedom, require others who do not
share that belief to modify their behaviour. As stated in Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 62, “[c]onduct which would potentially cause harm to or interference
with the rights of others [may not] be protected”.
[56]
On s. 35, the Court of Appeal agreed with the
chambers judge’s conclusion that “the process of consultation and the
accommodation offered meets the reasonableness standard” (para. 93). It
concluded that the chambers judge did not err in law by finding reasonable the
Minister’s characterization of the potential Aboriginal right as a right to “preclude permanent development” rather than a right to “exercise
spiritual practices which rely on a sacred site and require its protection”
(para. 81). Nor did the chambers judge understate the scale of the alleged
infringement to the Ktunaxa and apply too light a standard of consultation; in
fact, deep consultation consistent with an important impact took place.
Finally, the chambers judge did not err in finding that the Ktunaxa first
asserted the permanent nature of the proposed project would infringe their s.
35 Aboriginal rights in 2009. In fact, the chambers judge found that what was
first asserted in 2009 was the position that “no accommodation” was possible —
a finding supported by the record.
IV.
Issues
[57]
A. Did the Minister’s decision violate the
Ktunaxa’s freedom of
conscience and religion?
B. Was the Minister’s decision that the Crown had met its duty to
consult and accommodate
under s. 35 of the Constitution Act, 1982
reasonable?
V.
Analysis
A.
Did the Minister’s Decision Violate the
Ktunaxa’s Freedom of Conscience and Religion?
(1)
The Claim
[58]
The Ktunaxa contend that the Minister’s decision
to allow the Glacier Resorts project to proceed violates their right to freedom
of conscience and religion protected by s. 2 (a) of the Charter .
This claim is asserted independently from the Ktunaxa’s s. 35 claim. Even if
the Minister undertook adequate consultation under s. 35 of the Constitution
Act, 1982 , his decision could be impeached on the ground that it
violated the Ktunaxa’s Charter guarantee of freedom of religion. We note
that with respect to the s. 2 (a) claim, the Ktunaxa stand in the same
position as non-Aboriginal litigants.
[59]
The Ktunaxa assert that the project, and in
particular permanent overnight accommodation, will drive Grizzly Bear Spirit
from Qat’muk. As Grizzly Bear Spirit is central to Ktunaxa religious beliefs
and practices, its departure, they say, would remove the basis of their beliefs
and render their practices futile. The Ktunaxa argue that the vitality of their
religious community depends on maintaining the presence of Grizzly Bear Spirit
in Qat’muk.
[60]
The Ktunaxa fault the Minister for not having
considered their right to freedom of religion in the course of his decision.
The Ktunaxa raised the potential breach of s. 2 (a) before the Minister.
Nevertheless, the Minister’s Rationale for approving the Jumbo Glacier Resort
did not analyze the s. 2 (a) claim. The Minister should have discussed
the s. 2 (a) claim. However, his failure to conduct an analysis of the
Ktunaxa’s right to freedom of religion is immaterial because the claim falls
outside the scope of s. 2 (a). This was the finding of both the chambers
judge and the Court of Appeal and we agree, though for somewhat different
reasons.
(2)
The Scope of Freedom of Religion
[61]
The first step where a claim is made that a law
or governmental act violates freedom of religion is to determine whether the
claim falls within the scope of s. 2 (a). If not, there is no need to
consider whether the decision represents a proportionate balance between
freedom of religion and other considerations: Amselem, at para.
181.
[62]
The seminal case on the scope of the Charter guarantee
of freedom of religion is this Court’s decision in Big M Drug Mart. The
majority of the Court, per Justice Dickson (as he then was), defined s. 2 (a)
as protecting “the right to entertain such religious beliefs as a person
chooses, the right to declare religious beliefs openly and without fear of
hindrance or reprisal, and the right to manifest religious belief by worship
and practice or by teaching and dissemination” (p. 336).
[63]
So defined, s. 2 (a) has two aspects — the
freedom to hold religious beliefs and the freedom to manifest those beliefs.
This definition has been adopted in subsequent cases: Loyola High School v.
Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 58; Mouvement laïque québécois v. Saguenay (City), 2015 SCC
16, [2015] 2 S.C.R. 3, at para. 68; Saskatchewan
(Human Rights Tribunal) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at
para. 159; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC
6, [2006] 1 S.C.R. 256, at para. 32; Amselem, at para. 40.
[64]
These two aspects of the right to freedom of
religion — the freedom to hold a religious belief and the freedom to manifest
it — are reflected in international human rights law. Article 18 of the Universal
Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc A/810, at 71
(1948) (“UDHR”), first defined the right in international law in these terms:
“Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance.”
[65]
Similarly, art. 18(1) of the International
Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47
(“ICCPR”) defined the right to freedom of religion as consisting of “freedom to
have or to adopt a religion or belief of [one’s] choice” and “freedom, either
individually or in community with others and in public or private, to manifest
his religion or belief in worship, observance, practice and teaching”. The
relevance of art. 18(1) of the ICCPR to s. 2 (a) of the Charter
was considered by a noted human rights jurist, Tarnopolsky J.A., in R. v.
Videoflicks Ltd. (1984), 48 O.R. (2d) 395 (C.A.). He observed that art.
18(1) defined freedom of religion “as including not only the right to have or
adopt a religion or belief of one’s choice, but also to be able to ‘manifest’
the religion or belief” (p. 421 (emphasis deleted)), and added that s. 2 (a)
of the Charter — then a new and judicially unconsidered feature of
Canada’s constitution — should be “interpreted in conformity with our
international obligations” (at 420). On further appeal to this Court, Dickson
C.J. approved Tarnopolsky J.A.’s approach to s. 2 (a), noting that his
definition of freedom of religion “to include the freedom to manifest and
practice one’s religious beliefs . . . anticipated conclusions which were
reached by this Court in the Big M Drug Mart Ltd. case”: R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 735. Later, in Reference
re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at
p. 349, Dickson C.J. proposed, as Tarnopolsky J.A. had done, that the Charter
be presumed to provide at least as great a level of protection as is found in
Canada’s international human rights obligations. The Court has since adopted
this interpretive presumption: Health Services and Support — Facilities
Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2
S.C.R. 391, at para. 70; Divito v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157, at paras. 22-23 and 25; India v. Badesha, 2017 SCC 44, at para.
38.
[66]
The two aspects of freedom of religion
enunciated in the UDHR and ICCPR are also found in international human rights
instruments to which Canada is not a party. Article 9(1) of the European
Convention on Human Rights, 213 U.N.T.S. 221, recognizes everyone’s right
to “freedom of thought, conscience and religion” including “freedom . . . to
manifest [one’s] religion or belief, in worship, teaching, practice and
observance”. The American Convention on Human Rights, 1144 U.N.T.S. 123,
provides, at art. 12(1), that “[e]veryone has the right to freedom of
conscience and of religion” including “freedom to profess or disseminate one’s
religion or beliefs”, while art. 12(3) indicates that the “[f]reedom to
manifest one’s religion and beliefs” may be subject only to lawful limitations.
While these instruments are not binding on Canada and therefore do not attract
the presumption of conformity, they are nevertheless important illustrations of
how freedom of religion is conceived around the world.
[67]
The scope of freedom of religion in these
instruments is expressed in terms of the right’s two aspects: the freedom to
believe and the freedom to manifest belief. This Court’s definition from Big
M Drug Mart, consistently applied in later cases, is in keeping with this
conception of the right’s scope. The question, then, is whether the Ktunaxa’s
claim falls within that scope.
(3)
Application to This Case
[68]
To establish an infringement of the right to
freedom of religion, the claimant must demonstrate (1) that he or she
sincerely believes in a practice or belief that has a nexus with religion, and
(2) that the impugned state conduct interferes, in a manner that is non‑trivial
or not insubstantial, with his or her ability to act in accordance with that
practice or belief: see Multani, at para. 34.
[69]
In this case, it is undisputed that the Ktunaxa
sincerely believe in the existence and importance of Grizzly Bear Spirit. They
also believe that permanent development in Qat’muk will drive this spirit from
that place. The chambers judge indicated that Mr. Luke came to this belief in
2004 but whether this belief is ancient or recent plays no part in our s. 2 (a)
analysis. The Charter protects all sincere religious beliefs and
practices, old or new.
[70]
The second part of the test, however, is not met
in this case. This stage of the analysis requires an objective analysis of the
interference caused by the impugned state action: S.L. v. Commission
scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, at
para. 24. The Ktunaxa must show
that the Minister’s decision to approve the development interferes either with
their freedom to believe in Grizzly Bear Spirit or their freedom to manifest
that belief. But the Minister’s decision does neither of those things. This case is not concerned with either the freedom to hold a
religious belief or to manifest that belief. The claim is rather that s. 2 (a)
of the Charter protects the presence of Grizzly Bear Spirit in Qat’muk.
This is a novel claim and invites this Court to extend s. 2 (a) beyond
the scope recognized in our law.
[71]
We would decline this invitation. The state’s
duty under s. 2(a) is not to protect the object of beliefs, such as
Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom
to hold such beliefs and to manifest them in worship and practice or by
teaching and dissemination. In short, the Charter protects the freedom
to worship, but does not protect the spiritual focal point of worship. We have
been directed to no authority that supports the proposition that s. 2 (a)
protects the latter, rather than individuals’ liberty to hold a belief and to
manifest that belief. Section 2 (a) protects the freedom to pursue
practices, like the wearing of a kirpan in Multani or refusing to be
photographed in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC
37, [2009] 2 S.C.R. 567. And s. 2(a) protects the right to freely hold
the religious beliefs that motivate such practices. In this case, however, the
appellants are not seeking protection for the freedom to believe in Grizzly
Bear Spirit or to pursue practices related to it. Rather, they seek to protect
Grizzly Bear Spirit itself and the subjective spiritual meaning they derive
from it. That claim is beyond the scope of s. 2 (a).
[72]
The extension of s. 2(a) proposed by the
Ktunaxa would put deeply held personal beliefs under judicial scrutiny.
Adjudicating how exactly a spirit is to be protected would require the state
and its courts to assess the content and merits of religious beliefs. In Amselem,
this Court chose to protect any sincerely held belief rather than
examining the specific merits of religious beliefs:
In my view, the State is in no position to be, nor should it become, the
arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting
and thus determining, either explicitly or implicitly, the content of a
subjective understanding of religious requirement, “obligation”, precept,
“commandment”, custom or ritual. Secular judicial determinations of theological
or religious disputes, or of contentious matters of religious doctrine,
unjustifiably entangle the court in the affairs of religion.
(para. 50, per
Iacobucci J.)
The Court in Amselem
concluded that such an inquiry into profoundly personal beliefs would be
inconsistent with the principles underlying freedom of religion (para. 49).
[73]
The Ktunaxa argue that the Big M Drug Mart
definition of the s. 2(a) guarantee has been subsequently enriched by an
understanding that freedom of religion has a communal aspect, and that the state
cannot act in a way that constrains or destroys the communal dimension of a
religion. Grizzly Bear Spirit’s continued occupation of Qat’muk is essential to
the communal aspect of Ktunaxa religious beliefs and practices, they assert.
State action that drives Grizzly Bear Spirit from Qat’muk will, the Ktunaxa
say, “constrain” or “interfere” with — indeed destroy — the communal aspect of
s. 2(a) protection.
[74]
The difficulty with this argument is that the
communal aspect of the claim is also confined to the scope of freedom of
religion under s. 2(a). It is true that freedom of religion under s. 2(a)
has a communal aspect: Loyola; Hutterian Brethren, at para. 89; Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine
v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650. But the communal aspects of freedom of religion do not, and should
not, extend s. 2(a)’s protection beyond the freedom to have beliefs and
the freedom to manifest them.
[75]
We conclude that s. 2(a) protects the
freedom to have and manifest religious beliefs, and that the Ktunaxa’s claim
does not fall within these parameters.
It is therefore unnecessary to consider whether the Minister’s decision
represents a reasonable balance between freedom of religion and other
considerations.
B.
Was the Minister’s Decision That the Crown Had
Met its Duty to Consult and Accommodate Under Section 35 of the Constitution
Act, 1982 Reasonable?
[76]
The Ktunaxa say that the Minister’s decision
that consultation and accommodation had been sufficient to satisfy s. 35 was
unreasonable, which in turn rendered his decision to approve the resort
unreasonable and invalid.
[77]
The Minister’s decision that an adequate
consultation and accommodation process occurred is entitled to deference: Haida
Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3
S.C.R. 511, at para. 62. The chambers judge was required to determine whether
the Minister reasonably concluded that the Crown’s obligation to consult and
accommodate had been met. A reviewing judge does not decide the constitutional
issues raised in isolation on a standard of correctness, but asks rather
whether the decision of the Minister, on the whole, was reasonable.
(1)
The Legal Requirements of the Section 35
Consultation and Accommodation Process
[78]
The constitutional guarantee of s. 35 of the Constitution
Act, 1982 is not confined to treaty rights or to proven or settled
Aboriginal rights and title claims. Section 35 also protects the potential
rights embedded in as-yet unproven Aboriginal claims and, pending the
determination of such claims through negotiation or otherwise, may require the
Crown to consult and accommodate Aboriginal interests: Haida Nation, at
paras. 25 and 27. Where, as here, a permit is sought to use or develop lands
subject to an unproven Aboriginal claim, the government is required to consult
with the affected Aboriginal group and, where appropriate, accommodate the
group’s claim pending its final resolution. This obligation flows from the
honour of the Crown and is constitutionalized by s. 35 .
[79]
The extent of the Crown’s duty to consult and
accommodate in the case of an unproven Aboriginal claim varies with the prima
facie strength of the claim and the effect the proposed development or use
will have on the claimed Aboriginal right: Haida Nation, at paras.
43-44. A strong prima facie claim and significant impact may require
deep consultation. A weak claim or transient impact may attract a lighter duty
of consultation. The duty is to consult and, where warranted, accommodate.
Section 35 guarantees a process, not a particular result. The Aboriginal group
is called on to facilitate the process of consultation and accommodation by
setting out its claims clearly (Haida Nation, at para. 36) and as early
as possible. There is no guarantee that, in the end, the specific accommodation
sought will be warranted or possible. The ultimate obligation is that the Crown
act honourably.
[80]
The holdings of Haida Nation, as they
pertain to this case, may be summarized as follows:
•
The duty to consult and, if appropriate, accommodate pending the resolution of claims is grounded in the honour
of the Crown, and must be understood generously to
achieve reconciliation (paras. 16-17).
•
The Crown, acting honourably, cannot “cavalierly run roughshod
over Aboriginal interests where claims affecting
these interests are being seriously pursued in the process of treaty negotiation”; it must consult and, if appropriate, accommodate
the Aboriginal interest (para.
27).
•
The duty to consult
is triggered by the Crown having “[k]nowledge of a credible
but unproven claim” (para.
37).
•
The content of the duty to consult and accommodate varies with the strength of the claim and the significance of the potential adverse effect on the Aboriginal interest (para. 39). Cases with a weak claim,
a limited Aboriginal right, or a minor intrusion may require only notice, information,
and
response to queries.
At the other end of the spectrum,
a strong prima
facie case with significant intrusion on an
important right may require the Crown to engage
in “deep consultation” and to accommodate the interest
by altering its plans. Between these extremes
lie other cases (paras. 43-45).
•
When the consultation process suggests amendment
of Crown policy,
a duty to reasonably accommodate
the Aboriginal interest
may arise (para. 47).
•
The duty to consult and, if appropriate, accommodate the Aboriginal interest is a two-way
street. The obligations on the Crown are to provide notice and information on the project, and to consult with the Aboriginal group
about its concerns.
The obligations on the
Aboriginal group include: defining
the elements of the claim with clarity
(para. 36); not frustrating the Crown’s
reasonable good faith attempts;
and not taking unreasonable positions
to thwart the Crown from making decisions or acting
where, despite meaningful consultation, agreement is not reached (para.
42).
•
The duty to consult and, if appropriate, accommodate Aboriginal interests
may require the alteration of a proposed development. However, it does not give Aboriginal groups a veto over developments pending proof of their
claims. Consent is required
only for proven claims,
and even then only in certain cases. What is required
is a balancing of
interests, a process of give and
take (paras. 45, 48-49 and
50).
[81]
The steps in a consultation process may be
summarized as follows:
1.
Initiation of the consultation process, triggered when the
Crown has knowledge, whether real or constructive, of the potential existence of an Aboriginal right
or treaty right and contemplates conduct that might adversely affect it;
2.
Determination of the level of consultation required, by reference to the strength of the prima
facie claim and the significance of the potential
adverse impact on the Aboriginal
interest;
3.
Consultation at the appropriate level; and
4.
If the consultation shows it is appropriate, accommodation of the Aboriginal interest, pending final resolution of the underlying claim.
This summary of the steps in a
consultation process is offered as guidance to assist parties in ensuring that
adequate consultation takes place, not as a rigid test or a perfunctory
formula. In the end there is only one question — whether in fact the consultation
that took place was adequate.
(2)
Was the Minister’s
Conclusion that the Consultation
Process Satisfied Section 35 Reasonable?
[82]
After an extensive regulatory process and
negotiations with the Ktunaxa spanning two decades, the Minister concluded
that the s. 35 duty of consultation and accommodation had been satisfied, and authorized the Glacier Resorts
ski project. As noted, a court reviewing
an administrative decision under s. 35 does not decide the
constitutional issue de novo for itself. Rather, it must ask whether the administrative decision maker’s finding on the issue was reasonable. The question before us is whether the Minister’s conclusion, that consultation and accommodation sufficient to satisfy s. 35 had occurred, was reasonable.
[83]
The s. 35 obligation to consult and accommodate
regarding unproven claims is a right to a process, not to a particular outcome.
The question is not whether the Ktunaxa obtained the outcome they sought, but
whether the process is consistent with the honour of the Crown. While the hope
is always that s. 35 consultation will lead to agreement and reconciliation of
Aboriginal and non-Aboriginal interests, Haida Nation makes clear that
in some situations this may not occur, and that s. 35 does not give unsatisfied
claimants a veto over development. Where adequate consultation has occurred, a
development may proceed without the consent of an Indigenous group.
[84]
The Ktunaxa’s petition asked the chambers
judge to issue a declaration that Qat’muk is sacred to the Ktunaxa and that
permanent construction is banned from that site. In effect,
they ask the courts, in the guise of judicial review of an administrative
decision, to pronounce on the validity of their claim to a sacred site and
associated spiritual practices. This declaration cannot be made by a court
sitting in judicial review of an administrative decision to approve a
development. In judicial proceedings, such a declaration can only be made after
a trial of the issue and with the benefit of pleadings, discovery, evidence,
and submissions. Aboriginal rights must be proven by tested evidence; they
cannot be established as an incident of administrative law proceedings that
centre on the adequacy of consultation and accommodation. To permit this would
invite uncertainty and discourage final settlement of alleged rights through
the proper processes. Aboriginal rights claims require that proper evidence be
marshalled to meet specific legal tests in the context of a trial: R. v. Van
der Peet, [1996] 2 S.C.R. 507; Delgamuukw v. British Columbia,
[1997] 3 S.C.R. 1010, at paras. 109 and 143; Mitchell v. M.N.R., 2001
SCC 33, [2001] 1 S.C.R. 911, at para. 26; Tsilhqot’in Nation v. British
Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para. 26.
[85]
Without specifically delegated authority,
administrative decision makers cannot themselves pronounce upon the existence
or scope of Aboriginal rights, although they may be called upon to assess the prima
facie strength of unproven Aboriginal claims and the adverse impact of
proposed government actions on those claims in order to determine the depth of
consultation required. Indeed, in this case, the duty to consult arises
regarding rights that remain unproven: Haida Nation, at para. 37.
[86]
The Ktunaxa reply that they must have relief
now, for if development proceeds Grizzly Bear Spirit will flee Qat’muk long
before they are able to prove their claim or establish it under the B.C. treaty
process. We are not insensible to this point. But the solution is not for
courts to make far-reaching constitutional declarations in the course of
judicial review proceedings incidental to, and ill-equipped to determine,
Aboriginal rights and title claims. Injunctive relief to delay the project may
be available. Otherwise, the best that can be achieved in the uncertain interim
while claims are resolved is to follow a fair and respectful process and work
in good faith toward reconciliation. Claims should be identified early in the
process and defined as clearly as possible. In most cases, this will lead to
agreement and reconciliation. Where 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. For the
Ktunaxa, this may seem unsatisfactory, indeed tragic. But in the difficult
period between claim assertion and claim resolution, consultation and
accommodation, imperfect as they may be, are the best available legal tools in
the reconciliation basket.
[87]
On the face of the matter, the Minister’s
decision that consultation sufficient to satisfy s. 35 had taken place does not
appear to be unreasonable. The Ktunaxa spiritual claims to Qat’muk had been
acknowledged from the outset. Negotiations spanning two decades and deep
consultation had taken place. Many changes had been made to the project to
accommodate the Ktunaxa’s spiritual claims. At a point when it appeared all
major issues had been resolved, the Ktunaxa, in the form of the Late-2009
Claim, adopted a new, absolute position that no accommodation was possible
because permanent structures would drive Grizzly Bear Spirit from Qat’muk. The
Minister sought to consult with the Ktunaxa on the newly formulated claim, but
was told that there was no point in further consultation given the new Ktunaxa
position that no accommodation was possible and that only total rejection of
the project would satisfy them. The process protected by s. 35 was at an end.
[88]
We conclude that on its face, the record
supports the reasonableness of the Minister’s conclusion that the s. 35
obligation of consultation and accommodation had been met. However, it is
necessary to consider the arguments advanced by the Ktunaxa in support of their
position that this conclusion was unreasonable.
[89]
The Ktunaxa in their factum say that the
consultation process was inadequate to satisfy s. 35 because: (1) the
government failed to properly characterize the right; (2) the government failed
to comprehend the role of knowledge keepers, which contributed to the late
disclosure of the true nature of the claim; (3) the government erroneously
treated the spiritual right as weak; (4) the government failed to properly
address the adverse impact of the project on the Ktunaxa’s rights; (5) consultation
was inadequate, and (6) no accommodation was made with respect to the spiritual
right. The Ktunaxa point to errors and omissions in the Minister’s Rationale,
which they say show the unreasonableness of his conclusion that adequate s. 35
consultation occurred. Overall, the Ktunaxa say the process of consultation was
flawed and did not fulfill the honour of the Crown or meet the goal of
reconciliation. We will consider each of these submissions in turn. In this
analysis we employ the term “spiritual” rather than “religious” only because
this term was used by the parties in their submissions. As the chambers judge
rightly noted (at para. 275), there is no issue here that the Ktunaxa’s system
of spiritual beliefs constitutes a religion.
(a) Failure to Properly Characterize the Right
[90]
The Ktunaxa say that while the right claimed was
the right “to exercise spiritual practices which rely on a sacred site and
require its protection” (A.F., at para. 112), the Minister erroneously
characterized it as a right “to preclude permanent development”: ibid.,
at para. 116. This mischaracterization, the Ktunaxa say, precluded proper
consultation and accommodation. In short, the Ktunaxa say, the Minister viewed
the Ktunaxa as making a claim to preclude development, instead of a making a
claim to a spiritual right.
[91]
The record does not support the contention that
the Minister mischaracterized the right in this way. Spiritual practices and
interests were raised at the beginning of the regulatory process and continued
to be discussed throughout, leading to a number of accommodations. The
Minister’s Rationale states:
With respect to the Ktunaxa
Nation’s asserted spiritual interests in the area . . . the
Consultation/Accommodation Summary notes how the Crown has endeavored to honourably
give consideration to those interests, while at the same time applying the
tests for determination of aboriginal rights as set out in relevant case law.
[p. 122]
[92]
The Consultation/Accommodation Summary states:
With
respect to an aboriginal rights claim, the Ministry has had to take the grizzly
and spiritual values information presented and characterize it in terms of an
aboriginal tradition, practice or activity that is integral to the culture of
the Ktunaxa. In addition to the hunting, gathering and fishing rights claims
discussed above, the Ministry has assessed the spiritual and cultural
related information not as a rights claim to carry out a specific activity but
more as a non-exclusive aboriginal right to ensure protection of Jumbo valley from
permanent forms of development for the purposes of preserving a place for the
spirit of the Grizzly bear which embodies a core spirit of the Ktunaxa people.
The claim seems to amount to a right to preclude certain kinds of permanent
development (excluding logging and other resource extraction which is more
ephemeral) so that the grizzly and its spirit, together with the spirit of the
Ktunaxa, can be maintained. [Emphasis added.]
(R.R. (Minister), at p. 115)
[93]
It is clear from this and from many other
statements throughout the process that the Minister understood that the Ktunaxa
were claiming a broad spiritual right, not just a right to block development.
It is also clear that the Minister understood that this right entailed
practices which depended on the continued presence of Grizzly Bear Spirit in
the valley, which the Ktunaxa believed would be driven out by the development.
[94]
Moreover, the Late-2009 Claim did not change the
nature of the spiritual interests in play. Rather, it attempted to include a
specific accommodation — no permanent construction — as part of the
asserted right. The characterization of an asserted right should not include
any specific qualification of that right: Mitchell, at para. 23. These
potential limitations are better examined in the consideration of adverse
effects and the reasonableness of the accommodation, and are addressed below.
(b) Failure
to Understand the Role of Knowledge Keepers
[95]
The Ktunaxa say the Minister erred by failing to
comprehend the role of the knowledge keepers. This criticism is based on a
statement in the Rationale that “details of the spiritual interest in the
valley have not been shared with or known by the general Ktunaxa population”
(p. 122). This led the Minister to question “whether any of these values can
take the shape of a constitutionally protected aboriginal right”, they contend
(ibid.).
[96]
The Minister’s query does not establish that the
Minister misunderstood the secrecy imperative. The Rationale makes it clear
that the Minister understood the special role of knowledge keepers, and
accepted that spiritual beliefs did not permit details of beliefs to be shared
with the population or outsiders. The Minister refers to “spiritual
information” which has been imparted to him “in a trusting way”: Rationale, at
p. 122. The need for knowledge keepers to keep details of spiritual beliefs
secret was made plain to the Minister during the regulatory process, and in
particular at his meeting in Cranbrook with knowledge keeper Mr. Luke and other
Ktunaxa members in September 2009. The record is clear that the Ktunaxa at this
meeting advised the Minister that only certain members of the community,
knowledge keepers, possessed information about spiritual values, and that only
Mr. Luke could speak to these matters. Nothing in the Rationale suggests that
the Minister had forgotten this fundamental point when he made his decision
that adequate consultation had occurred.
(c) Treating the Constitutional Right as Weak
[97]
The Ktunaxa argue that the Minister treated
their claimed spiritual interest in Qat’muk as weak. If the Crown significantly
undervalues the Aboriginal right at stake, this may render a decision adverse
to that interest reviewable: Haida Nation, at para. 63.
[98]
The Minister took account of numerous asserted
Aboriginal rights including the right to gather, the right to hunt and fish,
and the right to Aboriginal title: Rationale, at p. 122. The Minister’s
assessment of the strength of these asserted rights and the consultation and
accommodation flowing from them are not in dispute in this case. The main issue
of contention is, rather, the Minister’s appreciation and weighing of the
spiritual significance of Qat’muk, particularly following the Ktunaxa’s
advancement of the Late-2009 Claim.
[99]
The Minister at one point in his Rationale did
indeed refer to the spiritual claim as “weak”, stating that it had not been
shown to be part of a pre-contact practice integral to the Ktunaxa culture, and
that it had not been shared with and was not known to the general Ktunaxa
population (p. 122). This comment may seem at odds with the Minister’s
statement later in the Rationale that “[o]verall, the consultation applied in
this case is at the deep end of the consultation spectrum” (p. 123). The
explanation for this apparent tension lies in the fact that when the Minister
described the claim as “weak” early in the Rationale he had in mind the
Late-2009 Claim that the resort development could not proceed because this
would drive out Grizzly Bear Spirit and irrevocably impair the foundation of the
Ktunaxa spiritual practices. The Minister was not here referring to the broader
claim to spiritual values in Qat’muk. This is apparent from the Minister’s
statement that the claim he characterized as “weak” had not been shared with
and was not known to the Ktunaxa population generally. It is also supported by
the Minister’s reference to deep consultation being adequate “in respect of
those rights for which the strength of the claim is strong” (p. 123). We view
the Rationale as indicating that the Minister considered the overall spiritual
claim to be strong, but had doubts about the strength of the Late-2009 Claim.
[100]
Even if the Minister had accepted the Ktunaxa’s
characterization of the Late-2009 Claim as a right “to exercise spiritual
practices which rely on a sacred site and require its protection,” it still
would have been reasonable to find this aspect of the Ktunaxa’s overall claim
weak: C.A. reasons, at para. 81. As the Minister noted, in the negotiations the
Ktunaxa did not advise the Crown of “specific spiritual practices”: R.R.
(Minister), at p. 113; see also chambers judge’s reasons at para. 212. As such,
the Minister did not have evidence that the Ktunaxa were asserting a particular
practice that took place in Qat’muk prior to contact. The Late-2009 Claim
seemed designed to require a particular accommodation rather than to assert and
support a particular pre-contact practice, custom, or tradition that took place
on the territory in question.
(d)
Failure to Properly Assess the Adverse Impact of
the Development on the Spiritual Right
[101]
The Ktunaxa assert that because the Minister
mischaracterized the asserted right, he “could not have properly assessed the
ski resort’s adverse impact on the right”: A.F., at para. 123. The Ktunaxa do
not point to anything said by the Minister, but reference para. 83 of the Court
of Appeal reasons.
[102]
The record supports the view that after June
2009, the Minister understood the Ktunaxa position that any construction of
permanent accommodation on the resort site would drive Grizzly Bear Spirit from
Qat’muk and undermine the basis of their spiritual beliefs and practices. The
Court of Appeal in the criticized passage summarized the adverse impact issue
as follows, using the description provided by the Ktunaxa themselves in the Qat’muk
Declaration, and concluded the Minister understood the adverse impact from the
Ktunaxa perspective:
In this case, the
“adverse impacts flowing from the specific Crown proposal at issue” concerns
the spiritual consequences that follow from permitting development of the
Proposed Resort in the Qat’muk area. In the Qat’muk declaration, this is the
adverse impact that the Ktunaxa describe:
The refuge
and buffer areas will not be shared with those who engage in activities
that harm or appropriate the spiritual nature of the area.
These activities include, but
are
not limited to:
·
The construction
of buildings or structures with permanent foundations;
·
Permanent occupation of residences
To further
safeguard spiritual values, no disturbances or alteration
of the ground will be permitted
within the refuge area.
In my view, the Minister
reasonably characterized the above adverse impact on the s. 35 right as
concerning the impact of development of the Proposed Resort on the Ktunaxa and, in
particular, as a claim that development in the
Qat’muk area was
fundamentally inimical to their belief. [paras. 83-84]
[103]
We agree with the Court of Appeal on this point.
The record does not support the view that the Minister failed to properly
assess the adverse impact of the development on the spiritual claim.
(e) Inadequate Consultation on the Asserted Right
[104]
The overall contention of the Ktunaxa is that
the Crown did not offer sufficient consultation on their asserted right. It is
possible for a decision maker to mischaracterize a right and still fulfill the
duty to consult: Beckman v. Little Salmon/Carmacks First Nation, 2010
SCC 53, [2010] 3 S.C.R. 103, at paras. 38-39. Thus, even in the face of any
alleged mischaracterization or undervaluing, the key question is the level of
consultation regarding the asserted right.
[105]
We are satisfied that the Minister engaged in
deep consultation on the spiritual claim. This level of consultation was
confirmed by both the chambers judge (at para. 233) and the Court of Appeal (at
para. 86) and we would not disturb that finding.
[106]
Regarding the Late-2009 Claim that no permanent
construction be built, the Ktunaxa argue that the Minister wrongly ended the
consultation on June 3, 2009. There is a contradiction, it is argued, between
the Minister’s June 3, 2009 letter expressing the view that the s. 35
consultation process had been completed, and the chambers judge’s conclusion
that when post-2009 consultations were considered in the context of the
extensive prior consultation, “the Minister’s consultation in respect of the
Ktunaxa’s asserted spiritual claims was reasonable and appropriate”: A.F., at
para. 128, citing chambers judge’s reasons, at para. 232; see also A.F., at
para. 129.
[107]
This argument takes the Minister’s letter
stating that he considered sufficient consultation had taken place by June 3,
2009 out of context and fails to take account of what the Minister actually
said. The letter was written at a time when the sacred value of Jumbo Valley
was no longer listed as an outstanding issue for the Ktunaxa’s agreement, and
before the Late-2009 Claim. Negotiations with the Ktunaxa had been going well,
and the Minister reasonably believed that the only outstanding matters were
unrelated to the Ktunaxa rights claims. The Minister’s letter therefore advised
the Ktunaxa that, in his opinion, a reasonable consultation process had
occurred and that most of the outstanding issues were interest-based.
[108]
Five days later, on June 8, 2009 the Ktunaxa
responded to this letter with a list of concerns, not including the sacred
nature of the area. At meetings the next day, however, the Ktunaxa refocused on
the sacred nature of the site and asked for more consultation on this issue.
The Minister agreed to this, and lengthy in-depth consultations on this new
spiritual claim took place, including the meeting between the Minister himself
and the knowledge keeper, Mr. Luke, in Cranbrook in September. The Minister
sent the Ktunaxa a “Consultation/Accommodation Summary” that included a
description of the consultation and accommodation efforts specifically related
to the Late-2009 Claim and invited them to comment on it. He then met with them
and revisions were made to the document. Consultation continued until the
Ktunaxa issued the Qat’muk Declaration in November 2010 declaring that no
accommodation was possible and that the only point of further discussions was
to make decision makers understand why the proposed resort could not proceed.
Even after this, the Minister sought further consultation, without success.
[109]
There is no contradiction between the Minister’s
letter on June 3, 2009 and the chambers judge’s conclusion that negotiations
from 2009 onwards indicated deep consultation on the Late-2009 Claim. On June
3, that claim was not in play. Six days later, with the Ktunaxa change of
position, it assumed central importance, and renewed consultation focused on
this issue ensued.
[110]
The Ktunaxa also contend that the courts below
relied too much on the length of the consultation process. We agree that
adequacy of consultation is not determined by the length of the process,
although this may be a factor to be considered. While the Minister’s Rationale
mentions two decades of consulting, there is no evidence that he made his
decision simply because he felt the process had gone on too long. Rather, it
was clear to all by the spring of 2012 that given the position of the Ktunaxa,
more consultation would be fruitless.
[111]
Finally, the Ktunaxa assert that although the
Minister may have undertaken deep consultation on other issues, he did not
engage in deep consultation with respect to the Late-2009 Claim. We cannot
agree. Even after the Ktunaxa said further consultation was pointless, the
Minister persisted in attempts to consult.
(f) Failure to Accommodate the Asserted Right
[112]
As a consequence of the lengthy regulatory
process, many accommodations were made with respect to Ktunaxa spiritual
concerns. These included specific changes to protect the grizzly population in
Qat’muk — the west chair lift was removed because of the grizzly bear
population in that area and the resort was confined to the upper half of the
valley — as well as extensive environmental reserves and monitoring. The
findings of the chambers judge on this point (at para. 236) have not been
impugned.
[113]
The Ktunaxa say these changes were inadequate:
“Changes to the ski resort were measures required by economic, environmental
and wildlife protection concerns and, while they do set out some limited
protection for grizzly bears, there was no accommodation to address the ability
of the Ktunaxa to carry on their spiritual practices dependent upon Grizzly
Bear Spirit”: A.F., at para. 133; see generally paras. 133-38.
[114]
In point of fact, there was no evidence before
the Minister of “specific spiritual practices”. It is true, of course, that the
Minister did not offer the ultimate accommodation demanded by the Ktunaxa —
complete rejection of the ski resort project. It does not follow, however, that
the Crown failed to meet its obligation to consult and accommodate. The s. 35
right to consultation and accommodation is a right to a process, not a right to
a particular outcome: Haida Nation. While the goal of the process is reconciliation
of the Aboriginal and state interest, in some cases this may not be possible.
The process is one of “give and take”, and outcomes are not guaranteed.
VI.
Conclusion
[115]
The Minister’s decision did not violate the
Ktunaxa’s freedom of religion as their claim does not fall within the scope of
s. 2 (a) of the Charter . The Minister’s conclusion that
consultation sufficient to satisfy s. 35 of the Constitution Act, 1982
had occurred has not been shown to be unreasonable. For these reasons, we would
dismiss the appeal.
The reasons of Moldaver and Côté JJ. were delivered by
Moldaver J. —
I.
Overview
[116]
The Ktunaxa are an Aboriginal people who inhabit
parts of southeastern British Columbia. They claim that the decision by the
provincial Minister of Forests, Lands and Natural Resource Operations
(“Minister”) to approve a ski resort development infringes their right to
religious freedom under s. 2 (a) of the Canadian Charter of Rights and
Freedoms and constitutes a breach of the Crown’s duty to consult pursuant
to s. 35 of the Constitution Act, 1982 .
[117]
I agree with the Chief Justice and Rowe J. that
the Minister reasonably concluded that the duty to consult and accommodate the
Ktunaxa under s. 35 was met. Respectfully, however, I disagree with my
colleagues’ s. 2 (a) analysis. In my view, the Ktunaxa’s right to
religious freedom was infringed by the Minister’s decision to approve the
development of the ski resort proposed by the respondent Glacier Resorts Ltd.
The Ktunaxa hold as sacred several sites within their traditional lands, and
they revere multiple spirits in their religion. The Ktunaxa believe that a
very important spirit in their religious tradition, Grizzly Bear Spirit,
inhabits Qat’muk, a body of sacred land that lies at the heart of the proposed
ski resort. The development of the ski resort would desecrate Qat’muk and cause
Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the
land. As a result, the Ktunaxa would no longer receive spiritual guidance and
assistance from Grizzly Bear Spirit. All songs, rituals, and ceremonies
associated with Grizzly Bear Spirit would become meaningless.
[118]
In my respectful view, where state conduct
renders a person’s sincerely held religious beliefs devoid of all religious
significance, this infringes a person’s right to religious freedom. Religious
beliefs have spiritual significance for the believer. When this significance is
taken away by state action, the person can no longer act in accordance with his
or her religious beliefs, constituting an infringement of s. 2 (a).
That is exactly what happened in this case. The Minister’s decision to approve
the ski resort will render all of the Ktunaxa’s religious beliefs related to
Grizzly Bear Spirit devoid of any spiritual significance. Accordingly, the
Ktunaxa will be unable to perform songs, rituals or ceremonies in recognition
of Grizzly Bear Spirit in a manner that has any religious significance for
them. In my view, this amounts to a s. 2 (a) breach.
[119]
That being said, I am of the view that the
Minister proportionately balanced the Ktunaxa’s s. 2 (a) right with the
relevant statutory objectives: to administer Crown land and dispose of it in
the public interest. The Minister was faced with two options: approve the
development of the ski resort or grant the Ktunaxa a right to exclude others
from constructing permanent structures on over fifty square kilometres of Crown
land. This placed the Minister in a difficult, if not impossible, position. If
he granted this right of exclusion to the Ktunaxa, this would significantly
hamper, if not prevent him, from fulfilling his statutory objectives. In the
end, it is apparent that he determined that the fulfillment of his statutory
mandate prevented him from giving the Ktunaxa the veto right that they were
seeking.
[120]
In view of the options open to the Minister, I
am satisfied that his decision was reasonable. It limited the Ktunaxa’s right
“as little as reasonably possible” given these statutory objectives (Loyola
High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613,
at para. 40), and amounted to a proportionate balancing. I would therefore
dismiss the appeal.
II.
Analysis
A.
Section 2(a) of the Charter
(1)
The Scope of Section 2(a)
[121]
All Charter rights — including freedom of
religion under s. 2(a) — must be interpreted in a broad and purposive
manner (Figueroa v. Canada (Attorney General), 2003 SCC 37,
[2003] 1 S.C.R. 912, at para. 20; Reference re Prov.
Electoral Boundaries (Sask.), [1991] 2
S.C.R. 158, at p. 179, per McLachlin J., as she then was). As this Court stated
in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, the
interpretation of freedom of religion must be a “generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter ’s protection”
(emphasis added). The interpretation of s. 2 (a) must therefore be guided
by its purpose, which is to “ensure
that society does not interfere with profoundly personal beliefs that govern
one’s perception of oneself, humankind, nature, and, in some cases, a higher or
different order of being” (R. v. Edwards Books and
Art Ltd., [1986] 2 S.C.R. 713, at p. 759).
[122]
In light of this purpose, this Court has
articulated a two-part test for determining whether s. 2(a) has been
infringed. The claimant must show: (1) that he or she sincerely believes in a
belief or practice that has a nexus with religion, and (2) that the impugned
conduct interferes with the claimant’s ability to act in accordance with that
belief or practice “in a manner that is more than trivial or insubstantial” (Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R.
551, at para. 65; Multani v.
Commission scolaire Marguerite-Bourgeoys, 2006
SCC 6, [2006] 1 S.C.R. 256, at para. 34; Alberta v. Hutterian Brethren
of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 32).
[123]
The first part of the test is not at issue in
this case. None of the parties dispute that the Ktunaxa sincerely believe that
Grizzly Bear Spirit lives in Qat’muk, and that any permanent development would
drive Grizzly Bear Spirit out, desecrate the land and sever the Ktunaxa’s
spiritual connection to it. The central issue raised by this appeal concerns
the second part of the test. The Chief Justice and Rowe J. maintain that the Minister’s
decision does not interfere with the Ktunaxa’s ability to act in accordance
with their religious beliefs or practices. With respect, I disagree. As I will
explain, in my view, the Minister’s decision interferes with the Ktunaxa’s
ability to act in accordance with their religious beliefs and practices in a
manner that is more than trivial or insubstantial, and the Ktunaxa’s claim
therefore falls within the scope of s. 2(a).
(2)
The Ability to Act in Accordance With a
Religious Belief or Practice
[124]
As indicated, the s. 2(a) inquiry focuses
on whether state action has interfered with the ability of a person to act in
accordance with his or her religious beliefs or practices. This Court has
recognized that religious beliefs are “deeply held personal convictions . . .
integrally linked to one’s self-definition and spiritual fulfilment”, while
religious practices are those that “allow individuals to foster a connection
with the divine” (Amselem, at para. 39). In my view, where a person’s
religious belief no longer provides spiritual fulfillment, or where the
person’s religious practice no longer allows him or her to foster a connection
with the divine, that person cannot act in accordance with his or her religious
beliefs or practices, as they have lost all religious significance. Though an
individual could still publicly profess a specific belief, or act out a given
ritual, it would hold no religious significance for him or her.
[125]
The same holds true of a person’s ability to
pass on beliefs and practices to future generations. This Court has recognized
that the ability of a religious community’s members to pass on their beliefs to
their children is an essential aspect of religious freedom protected under s.
2(a) (Loyola, at paras. 64 and 67). Where state action has
rendered a certain belief or practice devoid of spiritual significance, this
interferes with one’s ability to pass on that tradition to future generations,
as there would be no reason to continue a tradition that lacks spiritual
significance.
[126]
Therefore, where the spiritual significance of
beliefs or practices has been taken away by state action, this interferes with
an individual’s ability to act in accordance with his or her religious beliefs
or practices — whether by professing a belief, engaging in a ritual, or passing
traditions on to future generations.
[127]
This kind of state interference is a reality
where individuals find spiritual fulfillment through their connection to the
physical world. The connection to the physical world, specifically to land, is
a central feature of Indigenous religions. Indeed, as M.L. Ross explains,
“First Nations spirituality and religion are rooted in the land” (First
Nations Sacred Sites in Canada’s Courts (2005), at p. 3 (emphasis added)).
In many Indigenous religions, land is not only the site of spiritual practices
in the sense that a church, mosque or holy site might be; land may itself
be sacred, in the sense that it is where the divine manifests itself. Unlike in
Judeo-Christian faiths for example, where the divine is considered to be
supernatural, the spiritual realm in the Indigenous context is inextricably
linked to the physical world. For Indigenous religions, state action that
impacts land can therefore sever the connection to the divine, rendering
beliefs and practices devoid of their spiritual significance. Where state
action has this effect on an Indigenous religion, it interferes with a
believer’s ability to act in accordance with his or her religious beliefs and
practices.
[128]
Taking this feature of Indigenous religions into
account is therefore critical in assessing whether there has been a s. 2(a)
infringement. The principle of state neutrality requires that the state not
favour or hinder one religion over the other (see S.L. v. Commission
scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, at para. 32; Mouvement laïque québécois v. Saguenay (City), 2015
SCC 16, [2015] 2 S.C.R. 3, at para. 72). To ensure that
all religions are afforded the same level of protection under s. 2(a),
courts must be alive to the unique characteristics of each religion, and
the distinct ways in which state action may interfere with that religion’s
beliefs or practices.
(3)
The Chief Justice and Rowe J.’s Position on the
Scope of Section 2(a)
[129]
The Chief Justice and Rowe J. take a different
approach. They maintain that the Charter protects the “freedom to
worship”, but not what they call the “spiritual focal point of worship” (para.
71). If I understand my colleagues’ approach correctly, s. 2 (a) of the Charter protects only the
freedom to hold beliefs and manifest them through worship and practice (para.
71). In their view, even where the effect of state action is to render beliefs
and practices devoid of all spiritual significance, claimants still have the
freedom to hold beliefs and manifest those beliefs through practices, and there
is therefore no interference with their ability to act in accordance with their
beliefs. Thus, under my colleagues’ approach, as long as a Sikh student can
carry a kirpan into a school (Multani), Orthodox Jews can erect a
personal succah (Amselem), or the Ktunaxa have the ability to conduct
ceremonies and rituals, there is no infringement of s. 2 (a), even where
the effect of state action is to reduce these acts to empty gestures.
[130]
I cannot accept such a restrictive reading of s.
2 (a). As I have indicated, where a belief or practice is rendered devoid
of spiritual significance, there is obviously an interference with the ability
to act in accordance with that religious belief or practice. The scope
of s. 2 (a) is therefore not limited to the freedom to hold a belief and
manifest that belief through religious practices. Rather, as this Court noted
in Amselem, “[i]t is the religious or spiritual essence of an action”
that attracts protection under s. 2 (a) (para. 47). In my view, the
approach adopted by my colleagues does not engage with this crucial point. It
does not take into account that if a belief or practice becomes devoid of
spiritual significance, it is highly unlikely that a person would continue to
hold those beliefs or engage in those practices. Indeed, that person would have
no reason to do so. With respect, my colleagues’ approach amounts to protecting
empty gestures and hollow rituals, rather than guarding against state conduct
that interferes with “profoundly personal beliefs”, the true purpose of s. 2 (a)’s
protection (Edwards Books, at p. 759).
[131]
This approach also risks excluding Indigenous
religious freedom claims involving land from the scope of s. 2 (a)
protection. As indicated, there is an inextricable link between
spirituality and land in Indigenous religious traditions. In this context,
state action that impacts land can sever the spiritual connection to the
divine, rendering Indigenous beliefs and practices devoid of their spiritual
significance. My colleagues have not taken this unique and central feature of
Indigenous religion into account. Their approach therefore risks foreclosing
the protections of s. 2 (a) of the Charter to substantial elements
of Indigenous religious traditions.
(4)
The Minister’s Decision Infringes the Ktunaxa’s
Freedom of Religion Under Section 2(a) of the Charter
[132]
I turn now to the facts of this case. The
Ktunaxa’s religion encompasses multiple spirits and several places of spiritual
significance (see, e.g. A.R., vol. II, at pp. 119 and 197). The Ktunaxa
sincerely believe that Qat’muk is a highly sacred site, home to a very
important spirit — Grizzly Bear Spirit. The Ktunaxa assert that Grizzly Bear
Spirit provides them with spiritual guidance and assistance. They claim that
the proposed development would drive Grizzly Bear Spirit out, sever their
spiritual connection with Qat’muk, and render their beliefs in Grizzly Bear
Spirit devoid of spiritual significance.
[133]
The Chief Justice and Rowe J. frame the Ktunaxa’s
religious freedom claim as one that seeks to protect the “spiritual focal point
of worship” — that is, Grizzly Bear Spirit (para. 71). I disagree. The Ktunaxa
are seeking protection of their ability to act in accordance with their
religious beliefs and practices, which falls squarely within the scope of s. 2(a).
If the Ktunaxa’s religious beliefs in Grizzly Bear Spirit become entirely
devoid of religious significance, their prayers, ceremonies, and rituals in
recognition of Grizzly Bear Spirit would become nothing more than empty words
and hollow gestures. There would be no reason for them to continue engaging in
these acts, as they would be devoid of any spiritual significance. Members of
the Ktunaxa assert that without their spiritual connection to Qat’muk and to
Grizzly Bear Spirit, they would be unable to pass on their beliefs and
practices to future generations in any meaningful way, as illustrated in the
following excerpt from an affidavit quoted in the appellants’ factum:
If the
proposed resort were to go ahead in the heart of Qat’muk, I do not see how I
can meaningfully speak to my grandchildren about Grizzly Bear Spirit. How can I
teach them his songs, what to ask from him, if he no longer has a place
recognizable to us and respected as his within our world? [para. 28]
[134]
Viewed this way, I am satisfied that the
Minister’s decision approving the proposed development interferes with the
Ktunaxa’s ability to act in accordance with their religious beliefs or
practices in a manner that is more than trivial or insubstantial. The decision
therefore amounts to an infringement of the Ktunaxa’s freedom of religion under
s. 2(a).
B.
The Minister’s Decision Was Reasonable
(1)
The Doré Framework
[135]
Having resolved the preliminary issue that the
Minister’s decision to approve the development infringes the Ktunaxa’s s. 2(a)
right, I turn now to the question of whether the Minister’s decision was
reasonable.
[136]
This Court’s decision in Doré v. Barreau du
Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, sets out the
applicable framework for assessing whether the Minister reasonably exercised
his statutory discretion in accordance with the Ktunaxa’s Charter protections
(Loyola, at para. 3). On judicial review, the task of the
reviewing court applying the Doré framework “is to assess whether the
decision is reasonable because it reflects a proportionate balance” between the
Charter protections — both rights and values — at stake and the relevant
statutory objectives (Loyola, at para. 37; citing Doré,
at para. 57). As this Court explained in Loyola, a proportionate
balancing is one “that gives effect, as fully as possible to the Charter protections
at stake given the particular statutory mandate” (para. 39). That is, when the
Minister balances the Charter protections with the relevant statutory objectives,
he or she must ensure that the Charter protections are “affected as
little as reasonably possible” in light of the state’s particular objectives (Loyola,
at para. 40). This approach respects the expertise that decision
makers like the Minister bring to balancing Charter protections and
statutory objectives in the context of the particular facts before them (Loyola,
at para. 42, citing Doré, at para. 47).
(2)
A Reviewing Court May Consider an Administrative
Decision Maker’s Implicit Reasons
[137]
The Ktunaxa submit that the Minister did not
consider their s. 2(a) claim at all when he made his decision and that
his decision was therefore unreasonable. Although the Ktunaxa advised the
Minister that their s. 2(a) right was implicated by his decision regarding the
development (A.F., at para. 17), the Minister did not refer to s. 2(a)
explicitly in his reasons for his decision.
[138]
The chambers judge, Savage J., held that the
Minister did not need to specifically refer to the s. 2(a) claim made by
the Ktunaxa, because the Minister addressed the “substance” of the asserted Charter
right in his reasons: the Ktunaxa’s spiritual connection to Qat’muk, and
the impact the development would have on this connection (2014 BCSC 568, 306
C.R.R. (2d) 211, at paras. 270 and 273). Although Savage J. found that the
Minister’s decision did not infringe the Ktunaxa’s s. 2 (a) right, he
stated that if he was wrong in this regard, the Minister’s decision amounted to
a proportionate balancing of the Charter protections with the statutory
objectives (para. 301).
[139]
As I will explain, I agree with Savage J. in two
respects: (1) that the Minister addressed the “substance” of the Ktunaxa’s s.
2(a) right, and (2) that it is implicit from the Minister’s reasons that
he proportionately balanced the Charter protections at stake for the
Ktunaxa with the relevant statutory objectives. In this case, it is important
to recall that reviewing courts may consider an administrative decision maker’s
implicit reasoning for reaching a decision. As Abella J. held in Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, the reasons given by an administrative
decision maker are not required to explicitly address every argument raised by
the claimant:
Reasons may
not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion . . . . [para.
16]
[140]
Rather, the ultimate question for the reviewing
court is whether “the reasons allow the reviewing court to understand why the
[administrative decision maker] made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (ibid.).
Even if the reasons do not seem wholly adequate to justify the outcome, a
reviewing court should seek to first supplement the reasons of the
decision-maker before substituting its own decision (ibid., at para.
12). Reasonableness review thus entails “a respectful attention to the reasons
offered or which could be offered in support of a decision” (Newfoundland
Nurses, at para. 12, citing D. Dyzenhaus, “The Politics of Deference:
Judicial Review and Democracy”, in M. Taggart, ed., The Province of
Administrative Law (1997), 279, at p. 286; see also Agraira v. Canada
(Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R.
559, at para. 58). For example, in Newfoundland Nurses, although the
chambers judge and a dissenting judge at the Court of Appeal found that the
administrative decision maker’s reasons disclosed no line of reasoning which
could lead to his conclusion, this Court held that the decision maker was
“alive to the question at issue and came to a result well within the range of
reasonable outcomes” (para. 26). His decision was therefore reasonable.
(3)
The Minister Was Alive to the Substance of the
Ktunaxa’s Section 2(a) Right
[141]
In my view, it is clear from the Minister’s
reasons that he was alive to the “substance” of the Ktunaxa’s asserted Charter
right: the Ktunaxa’s spiritual connection to Qat’muk, and the fact that any
permanent development in Qat’muk would sever their spiritual connection to the
land. The Minister did note that the Ktunaxa’s prima facie claim to an
Aboriginal right under s. 35 based on their spiritual connection to the land
was “weak” (see Minister’s Rationale, at Schedule “F” of 2014 BCSC 568, pp.
117-24 (“Rationale”), at p. 122 (CanLII)). However, as I will explain, this
assessment of the s. 35 claim was based on factors which are irrelevant to the
s. 2 (a) inquiry and thus had no bearing on the Minister’s consideration
of the Ktunaxa’s s. 2 (a) right.
[142]
In assessing the prima facie claim to an
Aboriginal right as “weak”, the Minister specifically referred to elements of
the test under s. 35 for evaluating an Aboriginal right (see R. v. Van der
Peet, [1996] 2 S.C.R. 507, at paras. 46, 55 and 60). These elements include
whether the tradition or practice was engaged in prior to contact with
Europeans and whether it was integral to the distinctive culture of the
aboriginal group. The Minister noted that there was no indication that Jumbo
Valley was under threat from “permanent forms of development at the time of
contact such that the right claimed would have been one that was exercised or
an aboriginal tradition, practice or activity integral to the culture of [the]
Ktunaxa”, and that the “details of the spiritual interest in the valley” were
not shared with or known by the general Ktunaxa population (Rationale, at p.
122).
[143]
These elements of the test for identifying an
Aboriginal right under s. 35 are not part of the s. 2(a) inquiry. As
indicated, in order to determine that there is an infringement of a s. 2(a)
right, there are two requirements: (1) that the religious belief or practice is
sincerely held, and (2) that state conduct has interfered with the ability to
act in accordance with the belief or practice in a non-trivial way. It follows
that the Minister’s comment that the prima facie claim concerning the
Ktunaxa’s spiritual connection to the land was “weak” goes only to the strength
of the s. 35 claim and has no bearing on the assessment of the Ktunaxa’s s. 2(a)
right.
[144]
In fact, in his Rationale, the Minister
explicitly recognized that the proposed development put at stake the Ktunaxa’s
spiritual connection to Qat’muk — the substance of their s. 2(a) right.
Although the Minister assessed the strength of the s. 35 claim to an Aboriginal
right as “weak”, he stated that he “sincerely recognize[d] the genuinely sacred
values at stake for Ktunaxa leadership and the Knowledge Keepers in particular”
(p. 122). In his Consultation/Accommodation Summary (reproduced in R.R.
(Minister), at pp. 64-154), which the Minister refers to in his Rationale, he
noted that Jumbo Valley is an area of cultural significance with sacred values,
and that “the Land of the Grizzly Spirit” is a highly important spiritual site
in the Ktunaxa’s traditional lands (p. 111). In my view, the Minister was thus alive
to the substance of the Ktunaxa’s s. 2(a) right.
(4)
The Minister Engaged in Proportionate Balancing
(a)
Statutory Objectives
[145]
Before turning to the question of whether the
Minister engaged in proportionate balancing of the substance of the Ktunaxa’s
s. 2(a) right and his statutory mandate, I begin with the relevant
statutory objectives in this case. The Minister referred to several of his
statutory obligations under the Land Act, R.S.B.C. 1996, c. 245,
and the Ministry of Lands, Parks and Housing Act, R.S.B.C. 1996, c. 307,
that were relevant to his decision. At page 119 of his Rationale, the Minister
noted that under those Acts, he is “responsible for the administration of Crown
land” (see Land Act, s. 4), “responsible to dispose of Crown land where
[he] considers advisable in the public interest” (see Land Act, s.
11(1)), and “responsible for encouraging outdoor recreation” (see Ministry
of Lands, Parks and Housing Act, s. 5(b)). When the reasons of the Minister
are read fairly as a whole, it is apparent that he took these objectives into
account in arriving at his decision.
(b)
The Minister’s Efforts to Accommodate the
Ktunaxa’s Section 2(a) Claim
[146]
As I will explain, it is apparent from the
Minister’s reasons that he tried to limit the impact of the proposed development
on the substance of the Ktunaxa’s s. 2(a) right as much as reasonably
possible given these statutory objectives. The Minister in fact provided
significant accommodation measures that specifically addressed the Ktunaxa’s
spiritual connection to the land. As Savage J. noted, these accommodations were
“clearly intended to reduce the footprint of the Proposed Resort within Qat’muk
and lessen the effect of the Proposed Resort on Grizzly bears, within which the
Ktunaxa say that the Grizzly Bear Spirit manifests itself” (para. 313). These
measures included the following (Rationale, at p. 123):
•
The area of the “controlled recreation area” was
reduced by 60% and reductions were also made to the “total resort development
area”;
•
An area was removed “from the controlled
recreation area of the lower Jumbo Creek area that has been perceived as having
greater visitation potential from Grizzly bears”;
•
The “controlled recreation area” was also
“amended to remove ski lifts on the West side of the valley, where impact to
Grizzly bear habitat was expected to be greatest”;
•
The Province of B.C. would “pursue the
establishment of a Wildlife Management Area (WMA)” in order “to address
potential impacts in relation to Grizzly bears and aboriginal claims relating
to spiritual value of the valley”. The Ktunaxa were invited to engage with the
Province in the development and implementation of the WMA objectives.
[147]
It is true that these accommodation measures
were provided in the context of the Minister’s duty to consult and accommodate
under s. 35 . The Minister provided these measures, as well as other
accommodations, as part of a consultative process that occurred “at the deep
end of the consultation spectrum” (Rationale, at p. 123). But, as indicated,
the Minister provided the accommodation listed above to specifically address
the Ktunaxa’s spiritual interest in the land, even though the Minister assessed
the strength of the Ktunaxa’s prima facie s. 35 claim based on this
interest as “weak”. In my opinion, it does not make sense that the Minister
would provide significant accommodation for a “weak” s. 35 claim, which
suggests that the Minister took into account the Ktunaxa’s broader spiritual
interest in the land, distinct from the context of their s. 35 claim.
[148]
The Chief Justice and Rowe J. take a different
approach. They explain this apparent tension by asserting that the Minister
assessed as “weak” only the Ktunaxa’s s. 35 claim that their spiritual
connection to the land would be severed by any permanent development. For them,
the Minister determined that the Ktunaxa’s “broader claim to spiritual values
in Qat’muk” under s. 35 was strong, and he accordingly engaged in deep
consultation (para. 99).[1] In my view, even if my colleagues are right that the Minister
engaged in deep consultation to address the Ktunaxa’s “overall spiritual claim”
(para. 99) under s. 35 , it follows that the Minister provided the accommodation
above to reduce the impact of the development on the Ktunaxa’s spiritual
connection to Qat’muk. These measures indicate that the Minister made efforts
to mitigate the impact on the substance of their s. 2(a) right as much
as reasonably possible given his statutory mandate.
[149]
Nonetheless, I acknowledge that these
accommodation measures only reduce the footprint of the development in Qat’muk,
a very important spiritual site in the Ktunaxa’s religion. They do not prevent
the loss of the Ktunaxa’s spiritual connection to the land once the development
is built and Grizzly Bear Spirit leaves Qat’muk. The Ktunaxa’s position is
that there is no “middle ground” available regarding the development: no
accommodation is possible, as no permanent structures can be built on the land
or Qat’muk will lose its sacred nature. The Minister therefore had two options
before him: approve the development or permit the Ktunaxa to veto the
development on the basis of their freedom of religion. As I will explain, it
can be implied from the Minister’s decision that permitting the Ktunaxa to veto
the development was not consistent with his statutory mandate. Indeed, it would
significantly undermine, if not completely compromise, this mandate.
(c)
The Right to Exclude
[150]
Granting the Ktunaxa a
power to veto development over the land would effectively give the Ktunaxa a
significant property interest in Qat’muk — namely, a power to exclude others
from constructing permanent structures on over fifty square kilometres of
public land. This right of exclusion is not a minimal or negligible restraint
on public ownership. It gives the Ktunaxa the power to exclude others from
developing land that the public in fact owns. The public in this case includes
an Aboriginal group, the Shuswap Indian Band, that supports the development — a
fact which the Minister explicitly took into consideration in his reasons. The
Shuswap Indian Band is supportive of the development in part because of “the
potential economic development opportunities it may provide” (R.R. (Minister),
at p. 68).
[151]
The power of exclusion
is an essential right in property ownership, because it gives an owner the
exclusive right to determine the use of his or her property and to ensure that
others do not interfere with that use (see B. Ziff, Principles of Property
Law (6th ed. 2014), at p. 6). Without the power of exclusion, the owner is
unable to dictate how his or her property will be used. Even a person who has a
limited power of exclusion — for example, the power to prevent development of
the land — will be able to exercise control over the property and dictate its
use to a significant extent.
[152]
In granting a limited
power of exclusion to the Ktunaxa, the Minister would effectively transfer the
public’s control of the use of over fifty square kilometres of land to the
Ktunaxa. This power would permit the Ktunaxa to dictate the use of the land —
namely, preventing any permanent structures from being constructed — so that it
does not conflict with their religious belief in the sacred nature of Qat’muk. A
religious group would therefore be able to regulate the use of a vast expanse
of public land so that it conforms to its religious belief. It seems implicit
from the Minister’s reasons that permitting a religious group to dictate the
use of a large tract of land according to its religious belief — and excluding
the public from using the land in a way contrary to this belief — would
undermine the objectives of administering Crown land and disposing of it in the
public interest. It can be inferred that the Minister found that granting the
Ktunaxa such a power of exclusion would not fulfill his statutory mandate.
Rather, it would significantly compromise — if not negate — those objectives.
[153]
As indicated, the Ktunaxa’s s. 2(a) claim
left the Minister with two options: either to approve the development, or to
grant the Ktunaxa a right to exclude others from constructing any permanent
development on over fifty square kilometres of public land. This is distinct
from a situation where some reasonable accommodation — a “middle ground” — is
possible. For example, where a claimant seeks limited access to an area of
land, or seeks to restrict a certain activity on an area of land during certain
limited time periods, granting an accommodation may not have the effect of
undermining the Minister’s statutory objectives of administering Crown land and
disposing of it in the public interest. As proportionate balancing under Doré
requires limiting Charter protections “no more than is necessary given
the applicable statutory objectives” (Loyola, at para. 4), in such
cases, it may be unreasonable for the Minister not to provide these
accommodations.
[154]
But here, an accommodation that would not
compromise the Minister’s statutory mandate was unavailable. As indicated, the
Minister did make an effort to provide the Ktunaxa with accommodation to limit
the impact on their religious freedom, but the Ktunaxa took the position that
no permanent development in the area could be allowed. This placed the Minister
in a difficult, if not impossible, position. He determined that if he granted
the power of exclusion to the Ktunaxa, this would significantly hamper, if not
prevent, him from fulfilling his statutory objectives: to administer Crown land
and to dispose of it in the public interest. In the end, he found that the
fulfillment of his statutory mandate prevented him from giving the Ktunaxa a
veto right over the construction of permanent structures on over fifty square
kilometres of public land.
[155]
In view of the options open to the Minister, I
am satisfied that this decision was reasonable in the circumstances. It limited
the Ktunaxa’s right “as little as reasonably possible” given the statutory
objectives (see Loyola, at para. 40) and amounted to a proportionate
balancing.
III.
Conclusion
[156]
For these reasons, I would dismiss the appeal.
Appeal
dismissed.
Solicitors for the
appellants: Peter Grant & Associates, Vancouver; Diane Soroka Avocate
Inc., Westmount, Quebec.
Solicitor for the
respondent the Minister of Forests, Lands
and Natural Resource Operations: Attorney General of British
Columbia, Victoria.
Solicitors for the
respondent Glacier Resorts Ltd.: Owen
Bird Law Corporation, Vancouver.
Solicitor for the
intervener the Attorney General of Canada: Attorney General of Canada,
Vancouver.
Solicitor for the
intervener the Attorney General of Saskatchewan: Attorney General of
Saskatchewan, Regina.
Solicitors for the
interveners the Canadian Muslim Lawyers Association, the South Asian Legal
Clinic of Ontario and the Kootenay Presbytery (United Church of Canada): Stockwoods,
Toronto; Khalid Elgazzar, Ottawa.
Solicitors for the
interveners the Evangelical Fellowship of Canada and the Christian Legal
Fellowship: Vincent Dagenais Gibson, Ottawa; Christian Legal Fellowship, London,
Ontario.
Solicitors for the
intervener the Alberta Muslim Public Affairs Council: Nanda & Company,
Edmonton.
Solicitor for the
intervener Amnesty International Canada: Ecojustice Canada, Toronto.
Solicitors for the
intervener the Te’mexw Treaty Association: JFK Law Corporation, Victoria.
Solicitors for the
intervener the Central Coast Indigenous Resource Alliance: Ng Ariss Fong,
Vancouver.
Solicitors for the
intervener the Shibogama First Nations Council: Olthuis, Kleer, Townshend,
Toronto.
Solicitors for the
intervener the Canadian Chamber of Commerce: McCarthy Tétrault, Toronto.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Goldblatt
Partners, Toronto.
Solicitor for the
intervener the Council of the Passamaquoddy Nation at Schoodic: Paul
Williams, Ohsweken, Ontario.
Solicitors for the
intervener the Katzie First Nation: Donovan & Company, Vancouver.
Solicitors for the
interveners the West Moberly First Nations and the Prophet River First Nation: Devlin
Gailus Westaway, Victoria.