Between a Rock and a Sacred Place: the Limits of Aboriginal Rights and Freedom of Religion in Ktunaxa v BC (2017)

Kirsten Anker

McGill University

Indigenous peoples in Canada have long protected their territories: historically through treaties and armed conflict; now, through the courts, negotiated settlements and direct action. The constraints on doing so are multiple: the burdens of proving activities on the land in the distant past, issues of capacity, policies of extinguishment, a hard-headed bargaining stance on behalf of provincial and federal governments, and the criminalization of protest. The recent case Ktunaxa v. British Columbia (2017) adds another: that the spiritual nature of Indigenous attachments to place falls in the gap between the material concerns of property as protected by Aboriginal title and the metaphysical understanding of religious beliefs protected under s.2 of the Canadian Charter of Rights and Freedoms.

The Ktunaxa Nation sought to prevent the construction of a ski resort on a mountain known to them as Qat’muk, the home of Kⱡawⱡa Tukⱡuⱡakʔis or Grizzly Bear Spirit. In June 2009, the project had been in formal planning some 18 years, various accommodation measures for bear habitat, land transfers, jobs and economic compensation on the basis of general spiritual values had been proposed –  and agreement on outstanding issues seemed imminent to the Minister – when Ktunaxa representatives announced that consultations had not properly considered the nature of Qat’muk as a sacred site. Their challenge depended, in particular, on the concerns of an elder, Chris Luke Snr., who asserted that any permanent structures placed on the land would drive the Grizzly Bear Spirit from its home and render their beliefs meaningless. Consequently – and the Ktunaxa now became firm – no accommodation on the project was possible. Mr. Luke had come to this position in 2004 via what is the Court refers to as a “revelation”, but “health problems and secrecy concerns had prevented him from disclosing the revelation to others until 2009”. The Minister approved the project without further accommodations.

In Canadian law, the ability for Indigenous parties to veto a decision like this only accrues once they have successfully proven their Aboriginal title under s. 35 of the Constitution Act, 1982. Due to the complexity and expense of litigating a land claim, few communities have taken this path; only one claim has led to a declaration of title. The alternative political Comprehensive Claims process - that would likely result in high degrees of control only over a small percentage of a group’s overall territory - is similarly lengthy and has low completion rates. In the absence of these formally recognised rights, the Crown nevertheless has a duty to consult, triggered when governments contemplate activities that may potentially impact Aboriginal rights. Consultation and accommodation requirements vary according to the strength of the claim and the severity of the potential impact. Both parties must engage in good faith efforts to reach an agreement: the Crown must endeavor to accommodate Aboriginal concerns about the proposed activities; Aboriginal parties must clearly identify their claims and not frustrate these good faith attempts or take unreasonable positions. Nevertheless, in the “spirit of balance and compromise” the Crown may legitimately make decisions in the face of “disagreement as to the adequacy of its responses to Aboriginal concerns”.

Challenges to these ministerial decision then fall to the administrative law question of whether they are “reasonable”, and this was the first issue raised in Ktunaxa. The Court noted that judicial review proceedings were not the place to pronounce on the validity of the Ktunaxa’s spiritual claims to Qat’muk, claims that require proper evidence to meet the specific tests. Given that the central element of Aboriginal rights is practices and that of title is physical occupation, these tests are largely predicated on evidence of a material nature – for example, archeological remains of villages and fishing sites, ethno-historical accounts of physical presence and activities, mapping of current harvesting. The spiritual significance of the land is likely to fulfill a supporting evidentiary role only. Indeed, the Minister expressed doubt that the spiritual claims of the Ktunaxa would be constitutionally protected, and, in any case, considered that part of their claim to be weak, in part because the details of the Grizzly Bear Spirit were not widely known and because no specific practices (the focus of the Aboriginal rights test) had been outlined or proof of them offered. In this context, the Minister’s extensive list of proposals and accommodations appeared reasonable to the Court. In contrast, the Ktunaxa seemed uncompromising (no development is possible) and, reading between the lines, capricious (changing their mind at the last minute). The nature of revelation – that it can spring from “nowhere” or, as Mr. Luke put it in his affidavit, from the Grizzly Bear Spirit trying to tell him something – appears inconsistent with the “good faith” requirements that the nature of the claims be set out clearly and as early as possible.

So what of the second issue of religious freedom under s.2(a) of the Charter, where spiritual connections and revelations might have a proper place? For the Court, the recent appearance of the belief is not material: what matters is whether it is sincere. But s.2(a) only protects either the freedom to believe, or the freedom to manifest belief – such as by wearing a kirpan or refusing to be photographed. Instead, as the Court characterised the Ktunaxa’s claim, protection was being sought for the object of their belief – the Grizzly Bear Spirit itself and the Mountain as its physical home – due to the subjective meaning they derive from it. A majority of the Court felt that deciding how best to protect the Grizzly Bear spirit would lead to improper judicial scrutiny of “deeply held personal beliefs”. In contrast, Moldaver J’s partially concurring opinion argued that maintaining spiritual significance is central to the capacity to hold beliefs, and that in the case of Indigenous spirituality, that significance is often tied to the land. He suggests that the majority’s separation of subjective belief from its object or physical manifestation is itself a feature of a particular religious tradition, specifically, the Judeo-Christian faith in which the divine is supernatural. Moldaver J nevertheless held that the Minister’s infringement of this right was justified because it represented a “proportional balance” between the right and the statutory objectives of administering public lands. Where, as the Ktunaxa claimed, no middle ground was possible, it was those objectives that prevailed.

Using s.2(a) to protect Indigenous lands is relatively untested in Canada. One prior similar claim (Cameron v. Minister of Energy and Mines 1998 CanLII 6834 (BCSC)) saw the judge decline to prevent development on a sacred mountain given the absence of activities of worship located there rather than what he called “intellectual stewardship.” Moldaver J does attempt to avoid this dichotomy between the material and the spiritual. But there is another sort of rock that won’t budge in both opinions in Ktunaxa, and that is the inevitability of extractive capitalism subtended by Crown sovereignty over resources. In both the duty to consult and freedom of religion, the development of so-called Crown lands will be able to reasonably “accommodate” but not give way to Indigenous sacred places. As Moldaver J states, the Ktunaxa effectively asked the Court to turn a religious right into a property right – the right to exclude others. But the religious freedom pathway has only been chosen by the Ktunaxa because, unlike other religious groups, the physical homes of their objects of worship are not already protected by property law.

Kirsten Anker is Associate Professor at the Faculty of Law, McGill University, Canada. 

Suggested citation: K Anker, 'Between a Rock and a Sacred Place: the Limits of Aboriginal Rights and Freedom of Religion in Ktunaxa v BC (2017)' IACL-AIDC Blog (17 August 2018) https://blog-iacl-aidc.org/blog/2018/8/17/between-a-rock-and-a-sacred-place-the-limits-of-aboriginal-rights-and-freedom-of-religion-in-ktunaxa-v-bc-2017