Supreme Court

Constitutional Law

Charter of Rights and Freedoms

Nature of rights and freedoms

Minister’s decision to approve ski resort not engaging First Nation’s freedom of religion
First Nation raised concerns about ski resort respondent company sought to build on Q, which was place of spiritual significance for them. Q was home to Grizzly Bear Spirit, principal spirit within First Nation’s religious beliefs and cosmology. Consultation ensued, leading to significant changes to original proposal. First Nation adopted position that accommodation was impossible because ski resort would drive Grizzly Bear Spirit from Q. Minister of Forests, Lands and Natural Resource Operations declared that reasonable consultation had occurred and approved project. First Nation sought to overturn approval by Minister on grounds that project would violate First Nation’s freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms and that government breached its duty of consultation and accommodation under s. 35 of Constitution Act, 1982. Chambers judge dismissed petition for judicial review and Court of Appeal affirmed his decision. First Nation appealed. Appeal dismissed. Claim did not engage right to freedom of religion under s. 2(a) of Charter. Minister’s decision neither interfered with First Nation’s freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. Claim was that s. 2(a) of Charter protected presence of Grizzly Bear Spirit in Q, which would extent s. 2(a) beyond scope recognized in law. Charter protects freedom to worship but not spiritual focal point of worship. Extension of s. 2(a) proposed by First Nation would put deeply held personal beliefs under judicial scrutiny. Minority found that while Minister’s decision to approve development of resort infringed First Nation’s right to religious freedom, it limited right as little as reasonably possible and amounted to proportionate balancing.
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) (2017), 2017 CarswellBC 3020, 2017 CarswellBC 3021, 2017 SCC 54, 2017 CSC 54, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellBC 2215, 2015 BCCA 352, Lowry J.A., Bennett J.A., and Goepel J.A. (B.C. C.A.).

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