The Supreme Court of Canada granted leave to appeal the decision of the British Columbia Court of Appeal in Ktunaxa Nation v British Columbia. This case has important implications for indigenous communities seeking to protect their sacred sites from desecration.
What is the case about?
After a long process, the British Columbia Minister of Forests, Lands and Natural Resource Operations approved a Master Development Agreement for a ski hill operation proposed by Glacier Resorts.
Since the beginning of the process, the Ktunaxa have said that they have important spiritual interests in the area, which is known as Qat’muk. In 2009, they disclosed that their traditional knowledge was that overnight stays by humans in the Qat’muk area would destroy its spiritual value. The Qat’muk is the home of Klawla Tuklulak?is, the Grizzly Bear Spirit. Overnight stays, such as in the proposed ski resort, would cause the Grizzly Bear Spirit to abandon the Ktunaxa, leaving them without its spiritual guidance and rendering many of their religious and cultural practices meaningless. As a result, the community’s view was that no accommodation was possible since any development would lead to this result.
The Ktunaxa challenged the Minister’s approval of the development by judicial review, arguing that the decision infringed their freedom of religion protected under s. 2(a) of the Charter of Rights and Freedoms, and that the Minister had failed to fulfill the duty to consult and accommodate as required for Crown decisions affecting Aboriginal rights protected by s. 35 of the Constitution Act, 1982. Notably, they did not argue their Aboriginal rights under s. 35 and religious freedom under s.2(a) of the Charter intersected; rather they argued their s.2(a) right should be interpreted as if it were asserted by a non-Aboriginal group. 
The decisions so far
The chambers judge denied the Knutaxa’s application for judicial review. In the context of judicial review of an administrative decision, the test for religious freedom under the Charter requires the claimant to establish that they have a sincere belief that is in some way connected to religion (“having a nexus with religion”, as the courts put it), and that the government has interfered with their belief in a way that is more than trivial or insubstantial. If the claimant shows this, then the court will ask whether the decision reflects a proportionate balancing of the Charter protection and the Minister’s objectives.
The Knutaxa’s claim failed at the first step of this analysis before the chambers judge. A restriction on an otherwise lawful use of land simply because it would result in a loss of meaning for a religious practice carried out elsewhere was, in his view, only a “trivial or insubstantial” interference with religious freedom. The judge concluded that s. 2(a) was not infringed.
The British Columbia Court of Appeal agreed with the chambers judge’s conclusion, but held that he had taken too narrow an approach to religious freedom by focusing only on the individual component of religious freedom and ignoring its important communal dimension. In this case, a central part of the claim was that the proposed development would undermine the vitality of the religious community by severing “the deep linkage between the asserted Ktunaxa belief and the Ktunaxa “communal institutions and traditions”. Nonetheless, the Court of Appeal concluded freedom of religion was not infringed because s. 2(a) “does not apply to protect the vitality of religious communities where the vitality of the community is predicated on the assertion by a religious group that, to preserve the communal dimension of its religious beliefs, others are required to act or refrain from acting and behave in a manner consistent with a belief that they do not share.”
On the issue of the duty to consult, the chambers judge and the Court of Appeal both held that the consultation had been adequate. The Ktunaxa argued that the Minister had made a mistake by narrowly characterizing the Aboriginal right that triggered the duty to consult and accommodate as “a right to preclude permanent development” rather than as a right to “exercise spiritual practices which rely on a sacred site and require its protection”. The Court of Appeal disagreed, concluding that “the Minister (and the chambers judge) properly considered the scope of the s. 35 right by focusing on the effects of the state action on the general Aboriginal right.”
This appeal could have significant implications for communities whose religious and cultural practices are deeply connected to sacred sites. If the Supreme Court of Canada affirms the BC Court of Appeal’s reasoning on the religious freedom issue, it will be very difficult for other indigenous communities to use s. 2(a) of the Charter to prevent state-sanctioned interference with their sacred sites, especially if courts have not yet recognized their title to the lands on which those sacred sites are located. And the Court of Appeal’s reasoning is not limited to cases where a religious belief requires the total exclusion of other individuals from a sacred site; it suggests that a belief that imposes any constraint on the freedoms of other people would not be protected under s. 2(a).
It is easy to understand why a court would be nervous about allowing the beliefs of the members of one spiritual tradition to dictate the behaviour of non-members. One angle to consider is whether this concern should be used to narrow the scope of s. 2(a). In Canadian constitutional law, consideration of the competing rights of other individuals is often left for the second stage of the analysis—whether the interference with the constitutional right is acceptable because it is proportionate. This approach would allow for an explicit balancing of different rights and rights holders. It is also worth noting that, partially because the Knutaxa argued their religious freedom should be interpreted as if it were asserted by a non-Aboriginal group, the process by which the sacred site came to be subject to settler private property rights is absent from the Court’s story.
This kind of case may be more easily argued as an Aboriginal title claim. Canadian law usually thinks of the right to exclude others as a property right, not as a fundamental freedom. For example, settler religious sites like temples, churches and cemeteries are protected as private property from trespass by non-members. It is possible to argue that the exclusion of others from a particular site as a principle of indigenous law should be considered proof of Aboriginal title.
However, this approach, too, would face challenges. The land may be considered by the courts to have been “surrendered” or the title to have been “extinguished” by government action. The community might have moved away from a particular sacred space at some point in their history. Or—as in this case—the land may be subject to overlapping title claims. (Both the Ktunaxa and the Shuswap identify the Qat’muk area as part of their traditional territories). In such circumstances, Aboriginal title is unlikely to get communities much further towards protecting their sacred sites.
On the duty to consult issues in this case, I will only note that it is difficult to see how you can assess the negative impact of a proposed state action on an asserted s. 35 right—an essential step in the duty to consult analysis—without first defining that s. 35 right in terms of the culture and practices of the indigenous community. By skipping this step, you risk failing to appreciate what the protected practices mean to the community, and as a result, discounting the ways the state action would harm those practices. This seems at odds with the Supreme Court’s direction in cases like R v. Sparrow that “it is crucial to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake.”
The way in which this case deals with religious freedom rights under s. 2(a) of the Charter and Aboriginal cultural rights under s. 35 of the Constitution Act will have significant impacts on indigenous communities across Canada. There is limited case law in Canada dealing with protection of indigenous sacred and burial sites, in large part because indigenous communities have been cautious about trusting Canadian law to protect these sites. The Ktunaxa Nation case will set an important precedent that will determine whether the Canadian courts are seen as an effective remedy for indigenous groups seeking to protect the most important spiritual aspects and sites of their cultures.
 Court of Appeal decision at para. 9.
 Court of Appeal decision at para. 45.
 Syndicat Northcrest v. Amselem,  2 SCR 551, 2004 SCC 47 at paras. 56-63.
 Loyola High School v. Quebec (Attorney General),  1 SCR 613, 2015 SCC 12 at para. 39.
 Court of Appeal decision at paras. 63-64.
 Court of Appeal decision at para. 68.
 Court of Appeal decision at para. 74.
 Court of Appeal decision at para. 81.
 Court of Appeal decision at para. 82.
 See, eg, “The Law of the Land: New Jurisprudence on Aboriginal Title“, The Supreme Court Law Review v. 67, 2014.
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