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On November 2 the Supreme Court of Canada (SCC) released its much-awaited decision on the matter of Ktunaxa Nation v British Columbia (Forests, Land and Natural Resource Operations). In today’s post, the first of a two-part series, Kristopher Kinsinger assesses how the SCC’s decision on the Ktunaxa Nation’s section 2(a) Charter of Rights and Freedoms claim contributes to Canadian jurisprudence on freedom of religion. In the second part of this series, Bailey Fox will further analyze the SCC’s reasons on whether British Columbia failed to uphold its duty to consult and accommodate the Ktunaxa Nation.
The Supreme Court of Canada has adjudicated numerous Charter of Rights and Freedoms claims where state action has been alleged to interfere with the extent to which a?claimant is able to hold to and manifest their religious beliefs. What distinguishes Ktunaxa Nation v British Columbia (Forests, Land and Natural Resource Operations), 2017 SCC 54 [Ktunaxa] from virtually all of these rulings, however, is that the state action in question is said to render the claimant’s religious beliefs devoid of any religious significance. The case arose after the British Columbia Minister of Forests, Land and Natural Resource Operations (the Minister) approved the development of a year-round ski resort within the Jumbo Valley, which makes up part of the traditional territory of the claimant Ktunaxa Nation.
The claimants subsequently applied for judicial review, claiming that the Minister’s decision violated their section 2(a) Charter right to freedom of religion and their Aboriginal rights under section 35 of the Constitution Act, 1982. With regard to their Charter challenge, the Ktunaxa Nation claimed that the development would lead to an erosion of the local grizzly bear population and drive away Grizzly Bear Spirit, the focal point of Ktunaxa spirituality in the Jumbo Valley. The remainder of the case’s factual and legal background has already been extensively covered by เทคนิคยิงปลา www.ajourneythroughlearninglapbooks.com contributor Lillianne Cadieux-Shaw in two posts on the 2015 British Columbia Court of Appeal decision and last year’s SCC hearing. Consequently, I will limit the rest of my analysis to Chief Justice McLachlin and Justice Rowe’s majority reasons and Justice Moldaver’s partially concurring reasons concerning the Ktunaxa Nation’s section 2(a) claim.
The Majority’s Reasons: Limiting the Scope of Section 2(a)
Chief Justice McLachlin and Justice Rowe began their analysis of the Ktunaxa Nation’s section 2(a) Charter claim by noting that, as far as their religious freedom submissions are concerned, they “stand in the same position as non-Aboriginal litigants” (Ktunaxa, para 68). While this statement is technically correct (insofar as it seeks to ensure that the Ktunaxa Nation’s Aboriginal rights claim?is treated as being conceptually distinct from their separate Charter claim) it does raise concerns over how the majority ultimately frames the Ktunaxa Nation’s religious freedom claim. In particular, this assertion fails to address how the Ktunaxa’s spiritual beliefs differ from non-Indigenous religions and downplays the novelty of the Ktunaxa Nation’s claim within Canadian religious freedom jurisprudence.
The remainder of the majority’s relatively short assessment of the Ktunaxa Nation’s Charter claim focuses primarily on the constitutional scope of freedom of religion. They began by rearticulating then-Justice Dickson’s long-standing pronouncement from R v Big M Drug Mart,  1 SCR 295, that section 2(a) of the Charter protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs” (Ktunaxa, para 63; see also Big M, p 336). The majority – quite appropriately – further emphasized that this interpretation of section 2(a) aligns with the scope of religious freedom under international law and is consistent with the general proposition that “the Charter be presumed to provide at least as great a level of protection as is found in Canada’s international human rights obligations” (Ktunaxa, para 65).
The majority next reiterated the test from Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 [Multani] for establishing an infringement of freedom of religion, in which a claimant must show: (1) that they have a sincere religious belief or practice; and (2) that the state has interfered with their “ability to act in accordance” with this belief in a way that is “non-trivial or not insubstantial” (Ktunaxa, para 68; see also Multani, para 34). On this basis, the majority found that the Ktunaxa Nation had failed to establish an infringement of their section 2(a) rights. Even though the majority conceded that the sincerity of the claimant’s belief in the existence and importance of Grizzly Bear Spirit was not in doubt, they held that the Ktunaxa Nation had not met the second part of the test from Multani (Ktunaxa, para 70). The majority summed up the Ktunaxa Nation’s Charter claim in this way:
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 [the Jumbo Valley]. This is a novel claim and invites this Court to extend s. 2(a) beyond the scope recognized in our law (Ktunaxa, para 70).
The majority found that accepting the Ktunaxa Nation’s claim would require them to expand the scope of by section 2(a) beyond the freedom to hold and manifest religious beliefs to also protect the object of those beliefs, including Grizzly Bear Spirit. “In short,” they concluded, “the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship” (Ktunaxa, para 71). Consequently, the majority held that it was unnecessary to assess whether the Minister’s decision reasonably balanced the Charter protection at play with his statutory mandate (Ktunaxa, para 75).
Justice Moldaver’s Concurring Reasons: Protecting Religious Significance
In contrast to the majority, Justice Moldaver concluded in his partially concurring reasons that the Ktunaxa Nation’s section 2(a) rights were infringed by the Minister’s decision. This finding was grounded in the relatively simple premise that “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” (Ktunaxa, para 118). More specifically, Justice Moldaver emphasized that a claimant whose sincere religious beliefs has been rendered devoid of religious significance by the state will be unable to act in accordance with their religious beliefs, thus satisfying the second part of the test from Multani (Ktunaxa, para 124).
Justice Moldaver went on to emphasize that such state interference can occur “where individuals find spiritual fulfilment through their connection to the physical world” (Ktunaxa, para 127). In particular, he noted, such interference may be felt more heavily by Indigenous religious communities:
Unlike in Judeo-Christian faiths for example, where the divine is considered to be supernatural, the spiritual realm in the Indigenous context is inextricably linked to the physical world. For indigenous religions, state action that impacts land can therefore sever the connection to the divine, rendering beliefs and practices devoid of their spiritual significance (Ktunaxa, para 127).
In Justice Moldaver’s view, it is thus critical to take such aspects of Indigenous religion into consideration when assessing a section 2(a) claim by a First Nation. This approach, he further emphasized, conforms to the principle of state neutrality requiring that the state not favour one set of religious beliefs over another. “To ensure that all religions are afforded the same level of protection under section 2(a),” he insisted, “courts must be alive to the unique characteristics of each religion, and the distinct ways in which state action may interfere with that religion’s beliefs or practices” (Ktunaxa, para 128).
It was on these grounds that Justice Moldaver ultimately departed from the majority’s finding that the Ktunaxa Nation’s section 2(a) rights had not been breached. The reasoning adopted by the majority, he asserted, would find that a claimant still has the freedom to hold and manifest religious beliefs and practices even where state action has reduced those beliefs and practices to “empty gestures” (Ktunaxa, para 129). Such an approach fails to recognize that in such cases the claimant will be unlikely to continue to hold to their religious beliefs; in effect, they will have been compelled by the state to abandon their religion. As Justice Moldaver warned, this not only restricts the scope of section 2(a) but “also risks excluding Indigenous religious claims involving land from the scope of s. 2(a) protection” (Ktunaxa, paras 130-131).
Nevertheless, despite his finding that the Minister’s decision restricted the Ktunaxa Nation’s Charter rights to freedom of religion, Justice Moldaver concluded that such an infringement was reasonable under the proportionality framework for administrative decisions adopted by the SCC in Doré v Barreau du Quebec, 2012 SCC 12 (Ktunaxa, para 136). Although the Minister had not explicitly recognized the Ktunaxa Nation’s section 2(a) claim, Justice Moldaver found that this level of consideration is not necessary in the context of an administrative decision so long as the substance of Charter claim is assessed in the decision-maker’s reasons (Ktunaxa, para 138). “In my view,” he found, “it is clear from the Minister’s reasons that he was alive to the ‘substance’ of the Ktunaxa’s asserted Charter right” (Ktunaxa, para 141).
Furthermore, because of the Ktunaxa Nation’s uncompromising stance that any resort development would drive away Grizzly Bear Spirit, the Minister had found himself “in a difficult, if not impossible, position.” On the one hand, as Justice Moldaver had already found, approving development of the ski resort would deprive the Ktunaxa Nation’s spiritual beliefs of all religious significance. Yet on the other hand, acceding to the Ktunaxa Nation’s Charter claim would “hamper, if not prevent” the Minister from fulfilling his statutory mandate “to administer Crown land and to dispose of it in the public interest.” (Ktunaxa, para 154-155) Given these limited options, Justice Moldaver was thus convinced that the Minister’s infringement of the Ktunaxa Nation’s Charter rights “was reasonable in the circumstances.” (Ktunaxa, para 155)
Ktunaxa’s Impact on Religious Freedom Jurisprudence
The majority’s narrow interpretation of the Charter’s guarantee of freedom of religion is problematic for two reasons. First, Chief Justice McLachlin and Justice Rowe?insufficiently acknowledged the extent to which the Minister’s decision will interfere with the Ktunaxa Nation’s ability to act in accordance with their beliefs. Indeed, as far as the majority is concerned, the people of the Ktunaxa Nation are still free to believe in and centre their religious practices around Grizzly Bear Spirit. Yet this finding, as emphasized by Justice Moldaver, completely ignores the fact that the Minister’s decision will effectively annul the Ktunaxa Nation’s spiritual beliefs insofar as they are centred around Grizzly Bear Spirit. The point here is not whether such a decision is reasonable; there is ample room for these sorts of considerations to take place under a section 1 proportionality analysis, as Justice Moldaver’s reasons have further demonstrated. By adopting such a technical and illiberal reading of section 2(a), the majority has circumscribed the scope of the Charter in a way that will make it more difficult for religious minorities to bring forward novel religious freedom claims.
Second, although the majority – in keeping with the SCC’s ruling in Syndicat Northcrest v?Amselem, 2004 SCC 47?– rightly shied away from conducting a normative assessment of the Ktunaxa Nation’s “profoundly personal belief[s]”, such wariness is a poor excuse for not adjudicating situations where “subjective spiritual meaning” may be affected. Virtually all section 2(a) infringements will involve a state-imposed restriction on “subjective spiritual meaning”. To avoid assessing “how exactly a spirit is to be protected” is, in this case, to ignore the substance of the Ktunaxa Nation’s claim. Once again, Justice Moldaver’s partial concurrence has shown that the flexibility afforded by section 1 – particularly in the context of an administrative decision – is more than capable of?resolving?concerns that a?more liberal reading of section 2(a) could?frustrate government policy or impermissibly infringe the parallel rights of third parties.