The Supreme Court of Canada’s (“SCC”) decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations)1 affirmed the conventional understanding of the duty to consult doctrine. However, the Court’s assessment of the claimants’ s. 2(a)2 rights is concerning given its potential to narrow the scope of religious freedoms in Canada.
The Ktunaxa Nation’s traditional territory covers parts of southwestern Alberta and southeastern British Columbia, and extends into northwestern Montana and northern Idaho.3 A region within this territory, which the Ktunaxa call Qat’muk, is at the centre of the dispute that launched this case.4 The Ktunaxa believe that the Grizzly Bear Spirit inhabits the Qat’muk region5 and that any development in the region would drive the Spirit away.6 The consequence of this would be to sever the Ktunaxa’s connection with a spiritual entity central to their religious system.7 Glacier Resorts Ltd. (“Glacier”) had been negotiating with the Ktunaxa, as well as another Indigenous group, for approximately two decades regarding Glacier’s plans to develop the Qat’muk region into a ski resort.8 Eventually, the Minister accepted Glacier’s proposal. In response, the Ktunaxa sought judicial review, arguing that they did not receive adequate consultation and their s. 2(a) rights had been violated.9
The majority characterized the Ktunaxa’s argument as asking for s. 2(a) to protect the objects of their religion, which is beyond the scope of s. 2(a) protection.10 This conclusion appears consistent with the framework for protecting religious freedoms and its limits. However, the practical effect of this characterization for the Ktunaxa is to make their religious beliefs empty. Recall that the Ktunaxa believe the Grizzly Bear Spirit inhabits the Qat’muk region and that development would cause the Spirit to leave. In effect, the state action, of approving development in this region, robs the Ktunaxa of a vital spiritual connection. After the Spirit is driven away, the Ktunaxa will no longer be able to manifest beliefs associated with the Spirit. This point is illustrated by a brief review of the test for s. 2(a) violations and the guidance the SCC has given on this subsection’s purpose.
Section 2(a) is designed to protect a person’s right to hold religious beliefs and to manifest those beliefs.11 A violation of s. 2(a) requires a two-part test to be met. First, the claimant must hold a sincere belief and that belief must have a nexus with religion.12 Second, the impugned government action must interfere with the claimant’s belief in a non-trivial way.13 In R. v. Big M Drug Mart Ltd.,14 the foundational case for s. 2(a) cited throughout Ktunaxa Nation, the Court stated s. 2(a) should be interpreted purposively and generously.15 The aim is to give effect to the promise of s. 2(a), and to avoid an overly legalistic interpretation.16 The author accepts these comments speak to the general interpretive principles of s. 2(a) rather than how it is to be applied in specific instances. However, these comments are still relevant because the application of s. 2(a) should not be inconsistent with the guiding principles that informed the original understanding of the section.
In Ktunaxa Nation, the majority’s application departs from the guiding principles for s. 2(a) as they were stated in Big M Drug Mart. The majority held that the Ktunaxa’s claim failed at the second stage of the s. 2(a) analysis because the government interference neither limited the Ktunaxa’s right to believe in the Grizzly Bear Spirit, nor their ability to manifest that belief.17 With respect, this approach is unnecessarily technical and legalistic. It avoids the inescapable conclusion, reached by Justice Moldaver in dissent, that development which causes the removal of the Grizzly Bear Spirit extinguishes the basis of the Ktunaxa’s belief.18 The effect is to render any practices or rituals by the Ktunaxa associated with the Spirit into “empty gestures.”19 This level of interference properly satisfies the second branch of the s. 2(a) test.
The s. 2(a) elements of this case are unique because of the spiritual connection to the land the Ktunaxa hold. Moldaver J. argued that this point is critical in assessing a s. 2(a) violation for this spiritual belief.20 This type of connection to the land is a common feature of Indigenous religions. Therefore, policy issues arise if a court holds that s. 2(a) could be violated if land development engages these types of religious freedoms. The effect would be to give the Ktunaxa a type of property right. Again, this is a conclusion that Moldaver J. reached.21 He ultimately concluded, under administrative law principles, that the Minister reasonably balanced the infringement of the Ktunaxa’s religious freedoms given the alternative, that the Ktunaxa’s claim, if accepted, would amount to a limited, though substantial, property right for the Ktunaxa on public lands.22
Moldaver J.’s criticism is apt. Moreover, his conclusion that the Minister correctly balanced the impact of Glacier’s proposal on the Ktunaxa’s religious rights makes one wonder why the majority chose the analysis they did. 23 While both judgments reach the same conclusion, the majority’s route has the added consequence of subverting the scope of s. 2(a). Hopefully the Court will give further guidance on the application of s. 2(a) in the future. In particular, the Court could address the narrowing effect that Ktunaxa Nation has on religious freedoms in Canada and whether this was its intent with this judgment.
* JD (University of Saskatchewan).
1 2017 SCC 54, 415 DLR (4th) 52 [Ktunaxa Nation].
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
3 Ktunaxa Nation, supra note 1 at para 2.
4 Ibid at para 3.
5 Ibid at para 11.
6 Ibid at paras 6, 42, 59, 69, 86.
7 Ibid at paras 5, 42.
8 Ibid at para 4.
9 Ibid at para 50.
10 Ibid at para 70.
11 Ibid at para 67 citing R v Big M Drug Mart Ltd.,  1 SCR 295 at 336, 18 DLR (4th) 321 [Big M Drug Mart].
12 Syndicat Northcrest v Amselem, 2004 SCC 47 at para 46,  2 SCR 551 [Syndicat].
13 Ibid at para 58.
14 Big M Drug Mart, supra note 11.
15 Ibid at 344.
17 Ktunaxa Nation, supra note 1 at para 70.
18 Ibid at para 133.
19 Ibid at para 129.
20 Ibid at para 127.
21 Ibid at para 150.
22 Ibid at paras 151-55.
23 Ibid at para 139.