SCC rules resort approval does not infringe First Nation's freedom of religion.
Thursday, November 02, 2017 - Filed in: Court Cases
"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."
The S.C.C. held (9:0, with separate partially concurring reasons by two judges) that the appeal is dismissed.
Justices McLachlin and Rowe wrote as follows (at paras. 1, 8-9, 61, 68-71, 75, 82, 87-88):
"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.
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.,  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.
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.
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.
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.
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.
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,  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.
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,  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).
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.
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.
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.
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. ..."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.