On Thursday, November 2, the Supreme Court of Canada rendered its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Operations). This decision concerned the construction of a year-round ski resort in the Kootenay region on sacred land, Qat’muk, of the Ktunaxa Nation. The Qat’muk “is a very special place where Kⱡawⱡa Tukⱡuⱡakʔis, the Grizzly Bear Spirit, was born, goes to heal itself, and returns to the spirit world.” Desecration of this land would significantly harm Ktunaxa spirituality.
The Ktunaxa Nation appealed the Minister’s decision to allow construction of the resort on the basis it violated Charter s. 2(a) rights to freedom of conscience and religion, as well as failed the s. 35 Constitution Act, 1982 duty to consult. Unfortunately, in a unanimous decision the Supreme Court dismissed the appeal, and the Majority failed to recognize Indigenous spirituality under the Charter.
Ktunaxa Nation Council Chair, Kathryn Teneese states:
“With this decision, the Supreme Court of Canada is telling every indigenous person in Canada that your culture, history and spirituality, all deeply linked to the land, are not worthy of legal protection from the constant threat of destruction.”
The Majority decision, penned by The Chief Justice and Justice Rowe, failed to properly consider reconciliation. The Court did make a brief attempt to approach reconciliation, “We arrive at these conclusions cognizant of the importance of protecting Indigenous religious beliefs and practices, and the place of such protection in achieving reconciliation between Indigenous peoples and non-Indigenous communities” (para 10). This statement, however, is hollow. The principles of reconciliation are not carried throughout the decision.
The Court narrowly interpreted s. 2(a) and failed to consider how Indigenous spirituality may be distinct from settler religions. The Court states in reference to the Charter claim, “the Ktunaxa stand in the same position as non-Aboriginal litigants” (para 58). This statement dismisses the history of colonialism and erasure of Indigenous culture in Canada. There is a systemic failure to recognize the validity of Indigenous cultures and spirituality. To accord with the principles of reconciliation, the Court should not have considered Aboriginal litigants the same as non-Aboriginal litigants.
The Majority’s Charter analysis also failed to recognize land as an integral element of Indigenous spirituality. The Court mischaracterizes the Ktunaxa connection to Qat’muk as “the spiritual focal point of worship” (para 71). The Majority refused to conceptualize spirituality beyond a Christian, or settler, understanding of religion.
Justices Moldaver and Côté in a minority judgement acknowledge that the Majority’s s. 2(a) analysis was not broad and purposive, as is required in a Charter analysis (para 121). The Minority did recognize the important role that land can play in Indigenous spirituality (para 127). However, Justices Moldaver and Côté still would have dismissed the appeal when balancing the claim against public interest.
When characterizing the right to freedom of religion, the Majority discussed the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Despite the inclusion of international sources of law, the decision never mentioned the Universal Declaration on the Rights of Indigenous Peoples. Instead, the Court’s analysis focused exclusively on colonial definitions of religion.
When refusing to grant an injunction or declaratory relief, the Court asserts it is not the place of the judiciary in this case. The Court then discusses the role of consultation and states: “Claims should be identified early in the process and defined as clearly as possible. In most cases, this will lead to agreement and reconciliation” (para 86). This statement is tone deaf for two reasons:
First, it does not take into account the power imbalance between corporations that have state support and Indigenous peoples. To claim that consultation will lead to reconciliation when it repeatedly has not, demonstrates the Court’s ignorance.
Second, the Court does not recognize the burden placed on Indigenous people to characterize their spirituality in terms the state can comprehend. This burden is particularly salient in the Ktunaxa’s claim. “[The] Ktunaxa doctrine of secrecy regarding their spirituality includes strictures on sharing their communal religious beliefs and sacred sites with non-Ktunaxa persons.” Despite this doctrine, the Ktunaxa Nation shared their spirituality publicly in order define their claim within constitutional parameters. Although the Court claims to understand this aspect of Ktunaxa spirituality, throughout the decision they mention that the claim was not clearly defined from the beginning. The Court does not recognize the burden it imposes on Indigenous claimants and fails to consider their claims contextually.
The duty to consult under s. 35 has an extremely low threshold, yet the Court uses this section to absolve itself of actively engaging in reconciliation. The Majority writes, “[C]onsultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket” (para 86). Such a passive and stagnant approach to reconciliation by our highest court is not acceptable.
The Supreme Court failed the Ktunaxa Nation—and all Canadians—in this decision.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.