Ktunaxa Nation Council and Kathryn Teneese, on their own behalf and on behalf of all citizens of the Ktunaxa Nation v. Minister of Forests, Lands and Natural Resource Operations, et al.

(British Columbia) (Civil) (By Leave)




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Charter of Rights – Freedom of religion – Aboriginal peoples – Aboriginal rights – Is it legally correct for an administrative decision-maker to consider only an asserted s. 35 aboriginal right and not a s. 2(a) right when both are raised in relation to an impugned state action – Is it legally correct to cast a claimant seeking protection pursuant to Charter s. 2(a) as imposing its religious beliefs on the state rather than seeking protection of its religious practices and beliefs from state-sanctioned interference – Is there an automatic limit on the s. 2(a) right such that a government decision that renders a practice devoid of its religious nature can never exceed the “more than trivial or insubstantial” threshold required for a s. 2(a) infringement – How should courts and administrative decision-makers characterize an asserted aboriginal right to exercise spiritual practices, and is the BCCA’s reliance on the effects of the state action the correct way to define an asserted s. 35 right.

In March, 2012, the respondent Minister approved a master development agreement for the development of a ski resort by the respondent company on Crown land in the Jumbo Valley in the southeastern Purcell Mountains of B.C. The applicants brought a petition for judicial review of that decision, arguing that it violated their freedom of religion guaranteed under s. 2(a) of the Charter and breached the Minister’s duty to consult and accommodate asserted Aboriginal rights under s. 35 of the Constitution Act, 1982. The applicants assert that the proposed resort lies at the heart of a central area of paramount spiritual significance, being the Grizzly Bear Spirit’s home or territory (“Qat’muk”). They argue that allowing the development of permanent overnight human accommodation within Qat’muk would constitute a desecration and irreparably harm their relationship with the Grizzly Bear Spirit. The Spirit would leave Qat’muk, leaving them without spiritual guidance and rendering their rituals and songs about the Spirit meaningless. The Supreme Court of British Columbia dismissed the petition for judicial review on the basis that: i) s. 2(a) of the Charter did not confer a right to restrict the otherwise lawful use of land on the basis that such use would result in a loss of meaning to religious practices carried on elsewhere; and ii) the process of consultation and accommodation of asserted Aboriginal rights was reasonable. The Court of Appeal for British Columbia dismissed the appeal.

Lower Court Rulings

April 3, 2014
Supreme Court of British Columbia

S128500, 2014 BCSC 568
Applicants’ petition for judicial review of Minister’s dismissed
August 6, 2015
Court of Appeal for British Columbia (Vancouver)

CA41783, 2015 BCCA 352
Appeal dismissed