The Ktunaxa’s Fight for Religious Freedom: The Need for a Subjective Analysis



In fighting to protect its traditional territory from being depraved of its sanctity, the Ktunaxa Nation has opposed the construction of a large ski resort in Jumbo Valley, BC. The resort would obstruct the migration of Grizzly Bears, irreparably harming the Ktunaxa’s connection with the Bears’ spirit [Ktunaxa Nation, 2015 BCCA 352, at para 9]. The Ktunaxa have fought against the resort’s creation for two decades [Ktunaxa Nation, at para 5]. Despite their clear concerns, the Master Development Agreement (MDA) was approved by the government in 2012, which the Ktunaxa challenged on judicial review. They made two arguments: i) the approval of the MDA violated their freedom of religion under the Charter, and ii) the approval did not adequately fulfill the Crown’s duty to consult under section 35. Both the Trial Court [Ktunaxa Nation, 2014 BCSC 568] and the Court of Appeal [Ktunaxa Nation, 2015 BCCA 352] dismissed the Ktunaxa’s arguments. The case was heard on appeal to the Supreme Court on December 2nd.

The focus of this entry is the freedom of religion argument that the Ktunaxa makes in regards to the Minister’s approval of the MDA. On December 2nd, 2016, Jeff Huberman – Counsel for the Ktunaxa – gave a presentation at the University of Ottawa. He spoke about the novel claim that the legal team for the Ktunaxa is making in regards to freedom of religion. That is, Aboriginal groups tend to argue solely in terms of their section 35 Aboriginal and Treaty rights. Here, however, the legal team argued that the construction of the resort would interfere with the religious beliefs of the Ktunaxa in a manner that is beyond “trivial” [Ktunaxa Nation, 2015 BCCA 352, at para 56].

Background: Section 2(a)

As discussed by Mr. Huberman, the section 2(a) analysis has been designed to set a “low hurdle” for the claimant. Someone claiming a 2(a) violation must only establish that i) they have a sincere religious belief, and ii) the government action “interferes with” their ability to act in accordance with that belief in a way that is more than “trivial or insubstantial” [Whatcott, 2013 SCC 11 at para 155]. Following this onus being met, the government must justify the infringement under section 1.

The Legal Issue: Ktunaxa Nation v BC

Despite this low hurdle, both courts decided against the Ktunaxa’s freedom of religion argument. The Court of Appeal found that this was due to a mere “subjective spiritual meaning” which would be affected [at para 73]. Mr. Huberman asked us to consider that this reflects the judiciary’s inability to “see the other” – that is, the judges came to this conclusion without seriously considering the Ktunaxa’s claim from their perspective. To find that interference with one’s religion is “trivial” seems to require such a lack of consideration of the subjective perspective. Why would a group vehemently oppose a government action for two decades, on religious grounds, if the governmental interference was merely trivial? If the courts had seriously considered this perspective, the prima facie infringement would have been much more obvious, leaving the heavy lifting to the section 1 justification.

Analysis: “Subjective Spiritual Experience”

It seems to me that the Court of Appeal overly complicated the test for an infringement of section 2(a) by importing the notion of “subjective spiritual experience,” diminishing the importance of religious freedom itself. If religion is to have any meaning, it must be understood subjectively. The first step of the 2(a)-infringement test reflects this idea: it is the sincerity of the belief that is under examination, not the belief’s objective truth. Importantly, the Charter’s protection of religious freedom constitutionalized the individual’s own moral code. As noted by Horwitz, this creates a conflict between “divine authority” and “temporal authority” which the judiciary has to reconcile, rather than choose one to the detriment of the other.

Conclusion: The Importance of “Seeing the Other”

The Supreme Court will of course have the final word on the matter. I agree with Mr. Huberman that religious beliefs ought to be understood from the perspective of the individual, as difficult as this may be for the Court. The Ktunaxa risk incurring irreparable harm to their religious beliefs if the project is to go through. The Grizzly Bear Spirit – though perhaps not understood by a necessarily secular judiciary – is the underlying, organizing belief that makes the Ktunaxa Nation what it is. Hopefully the Supreme Court can see the case from this perspective.