BC’s Selkirk Mountains as seen from space: NASA

On November 3, 2017, the Supreme Court of Canada confirmed that, yet another part of a First Nation’s claimed traditional territory could be subject to permanent development because the government had conducted “reasonable consultation”. In Ktunaxa Nation v. British Columbia (Minister of Forests, Lands and Resources), 2017 SCC 54, the Court delivered a double blow to the Indigenous Nation. Not only did the Court hold that the Indigenous Nation’s freedom of religion was not infringed by the government’s decision to approve a year-round ski resort development on their claimed sacred grounds but the Court also found that the Minister had reasonably consulted the Indigenous Nation and that, therefore, the governmental approval was upheld. There are a number of perspectives to this case so this blog post will actually be considering:

1. Freedom of religion;
2. Reasonable consultation and accommodation; and
3. Supreme Court of Canada appointments.

1. Freedom of religion

The proposed Jumbo Glacier ski resort development was to be built in the heart of a territory known to the Ktunaxa as “Qat’muk”. The Ktunaxa believe that Qat’muk is the home to the Grizzly Bear Spirit, which spirit is a fundamental component of the Ktunaxa’s aboriginal religious beliefs. Of importance, the Ktunaxa believe that no permanent structures can be built in Qat’muk or the Grizzly Bear Spirit will leave Qat’muk.

The Chief Justice and Rowe J authored the majority’s decision and held that the Ktunaxa’s freedom of religion was not violated by the government’s actions because such actions did not in any way prevent the Ktunaxa from either holding or forming their beliefs respecting the Grizzly Bear Spirit or from manifesting that belief.

The learned judges stated in this regard (paras 68-71):

[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).

This is a classic Western liberal idealogical view of freedom of religion, one which I would fully expect to be employed by the Court in a case such as this.

Of interest is the fact that Moldaver J dissented on this point (Cote J concurring with Moldaver J’r reasons) and he would have held differently (para. 118):

[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.

But at the end of the day, Moldaver J’s views did not hold sway and so we are left with the classic interpretation of freedom of religion. I will come back to this point when I deal with the third issue that I highlighted at the beginning of this post.

2. Reasonable Consultation and Accommodation

The Chief Justice and Rowe J also held that after deep consultation and attempts by the government to modify the project in question to accommodate the claimed aboriginal rights, once the Ktunaxa took the position that nothing could be built on the lands in question, the consultation/accommodation process was effectively brought to an end and the Minister was entitled to determine that the consultation had been deep, that the accommoodation was reasonable and that, on the evidence before the Minister, the project could proceed.

The learned justices gave an excellent summary respecting the law and process for consultation and accommodation (paras. 80-81):

[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.

At paragraph 114, the learned justices importantly conclude:

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.

The biggest lesson from this decision on the consultation and accommodation question is that, so long as an Indigenous Nation is advancing a claim to aboriginal title or rights, provided the governmental consultation is deep and sufficient enough and provided the accommodations of the claimed interests are, on all the evidence, “reasonable”, the government can approve the project in question and this, notwithstanding the direct unwavering opposition of the Indigenous Nation in question. Of course, once the project is completed and the consequences to the aboriginal interests in question realized, there is likely no practical way of undoing the damage.

Thus, as I have said in a previous post, “any Indigenous nation that has an unproven claim of aboriginal rights and/or title should litigate that constitutional claim. Such Indigenous nations should plan for the long and expensive battle knowing that it is the only real way to provide protection and security for their ancient rights. I am not saying that such Indigenous nations should not engage in consultation discussions with proponents and governments. But I am saying that they should not view those discussions and the resultant decisions as being ultimately protective of their aboriginal title or rights in relation to its lands. For that, only a proven claim seems to be sufficient. And once proven, the Indigenous nation will have far more control and say in any decision respecting its ancestral lands” (“The Supremes give a lesson on the duty to consult and accommodate”, July 30, 2017)

In this case, had the Ktunaxa litigated their claim to aboriginal title to Qat’muk to a successful conclusion, the issue as to how to protect the Grizzly Bear Spirit’s homeland would be an issue left to them to deal with under their aboriginal self-governance. But because they had not, the claim to aboriginal title and rights can be consulted and accommodated into non-existence.

I will deal with a separate issue in a subsequent and independent post, namely, the need of the Indigenous Nations to advance their claims of aboriginal title and the corresponding need of the governments to assist, through the dedication of resources, whether it be in terms of time, personnel or money, to assist such Indigenous Nations in this endeavour as an extension and necessary component of the concept of reconciliation.

3. The Supreme Court of Canada appointment

As we know, our Chief Justice is stepping down and yet another vacancy will need to be filled for our most powerful Court. Much commentary has been made about the need for an appointment of an Indigenous judge to fill the Chief Justice’s seat.

One can ask if this decision may have been decided differently if there had been an Indigenous member of the Court. I do not think that one can presume that, simply by being Indigenous, a judge would have necessarily taken a different perspective than that taken by the majority. But I think that it is fair to say that an Indigenous judge would likely be able to draw on a life of experience in understanding the claims and arguments of the Indigenous parties appearing before the Court.

To be clear, I am not advocating that appointment be an Indigenous appointment. At the end of the day, the Court must be comprised of the highest quality judges. The Prime Minister may be able to find a candidate meeting all of the criteria, bilingual, maybe even from the Pacific region who is Indigenous. But, if he cannot find such a candidate in this round, then the objective of having an Indigenous member of the Supreme Court should be fulfilled in the not too distant future.

I remain

Constitutionally yours,

Arthur Grant