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Bulletin

Consultation on Jumbo Reasonable Despite Claims of Spiritual Impacts

Fasken
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Aboriginal Law Bulletin

On April 3, 2014, Mr. Justice Savage issued a decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568, finding that:

(1) the Crown had fulfilled its duty to consult and accommodate and had acted honourably in its efforts to consult and accommodate the Ktunaxa Nation (the Ktunaxa) on the proposed construction of a year-round ski resort to be located in the Upper Jumbo Valley (the Proposed Resort); and

(2) the Crown’s approval of the Proposed Resort did not result in any infringement of the Ktunaxa’s freedom of religion Charter rights.

The Court reviewed a “record of meetings, exchanges, and accommodation offers that amounts to a reasonable process of consultation and accommodation between the Minister and the Ktunaxa”. This record dealt with all issues brought forward by the Ktunaxa, including a claim that the Grizzly Spirit that resided in the valley would be permanently displaced as a result of the Proposed Project. The Ktunaxa held that both their Aboriginal rights and their Charter rights to freedom of religion would be irreparably harmed by the Proposed Resort and that, therefore, there could be no accommodation except to deny permission to build the Proposed Resort. The Court held that it was important to recognize that the potential effect on the exercise of spiritual or religious rights was not direct, but indirect, in nature and that therefore, the Crown’s significant efforts at consultation and accommodation were reasonable in the this context.

Background

Glacier Resorts Ltd. (Glacier) initially began the planning and applications for the Proposed Resort in 1991. From 1991 to 1993, under the Commercial Alpine Ski Policy, Glacier’s initial proposal was subjected to a review by the Minister of Forests, Lands and Natural Resource Operations (the Minister). While this review was being conducted, the Ktunaxa communicated to the Minister that the Proposed Resort was within their Comprehensive Land Claim area and requested that a consultation process be initiated. The Ktunaxa also communicated their opposition to the Proposed Resort on several grounds, including the effect that such development would have on the region’s environment and wildlife.

From 1993 to 1994, a second review was undertaken by the Commission on Resources and Environment. In 1995, following the completion of the second review, Glacier and the Minister entered into an Interim Agreement in respect of the Proposed Resort which required a further environmental assessment. The environmental assessment of the Proposed Resort took place from 1995 to 2004 and involved several rounds of public consultation. In 2004, the Ktunaxa submitted that Glacier be directed to negotiate an Impact Management and Benefits Agreement (the IMBA) with the Ktunaxa if the Proposed Resort was to be approved over their objections. The Proposed Resort was granted an Environmental Assessment Certificate (the EAC). The Ktunaxa did not challenge the EAC in court.

In 2005, Glacier submitted a draft master plan (the Plan) to the Minister, and from 2005 to 2007, the Plan was subject to a review. The Ktunaxa took the position that planned consultation was inadequate, and, in response, the Ktunaxa and Minister entered into an agreement with the goal of providing Ktunaxa with the resources needed to properly negotiate an IMBA.

In late 2006, the Ktunaxa informed the Minister that progress had been made in the process for the negotiation of an IMBA and that the remaining issues were funding-related. In mid-2007, Glacier informed the Minister that it believed it had reached an agreement in principle with the Ktunaxa. The Plan was approved by the Minister shortly thereafter.

From 2007 to 2009, the Minister made two separate financial accommodation proposals to the Ktunaxa. The first included $650,000 in economic benefits to be taken in cash or Crown land plus other non-financial accommodations. The second incorporated revenue sharing. Both offers were rejected by the Ktunaxa on the basis that the financial components were insufficient.

In mid-2009, after further negotiations regarding accommodation, the Ktunaxa asserted that the consultation process was deficient, in part because it had not properly considered the sacredness of the Jumbo Valley to the Ktunaxa. The Minister agreed to extend the consultation process and address the issue of sacred values and sought to meet with the Ktunaxa about this matter.

The Ktunaxa and the Minister met in late 2009. Based on information provided by an elder that was only recently shared with other members of the Ktunaxa, the Ktunaxa claimed that the Proposed Resort would result in desecration of one of their sacred sites. Because the Proposed Resort would result in permanent overnight human accommodation, the Ktunaxa believed that this would cause the Grizzly Bear Spirit to leave the Jumbo Valley. The Ktunaxa asserted that the Grizzly Bear Spirit provides physical and spiritual assistance and guidance to the Ktunaxa and if it were to leave the region, the Ktunaxa would experience a profound negative impact on their identity and culture. The Ktunaxa asserted that no accommodation would be possible.

Despite being unable to come to an agreement with the Ktunaxa on accommodation, the Minister signed a master development agreement (the MDA) with Glacier in 2012, incorporating accommodation measures responding to each of the concerns raised by the Ktunaxa during the consultation process. The Ktunaxa challenged the Minister’s decision to enter into the MDA, claiming that the Minister failed to fulfill its duty to consult and accommodate prior to doing so, and that this decision represented an infringement of the Ktunaxa’s freedom of religion rights.

The Decision

Duty to Consult

The Ktunaxa asserted that the Minister had performed an inadequate level of consultation with respect to the Ktunaxa’s asserted Aboriginal right to exercise a spiritual practice which by its nature required the protection of the Jumbo Valley, a Ktunaxa sacred site. While the Minister may have performed appropriate consultation with the Ktunaxa with respect to other issues, the Ktunaxa claimed that they were not properly consulted with respect to this particular asserted right. Therefore, the issue before Justice Savage was how to determine whether or not a consultation process aimed at addressing multiple asserted rights was reasonable in an instance where the process was impugned in respect of just one of the asserted rights.

Justice Savage determined that, in such instances, it is necessary to first examine the parts of the consultation process that directly addressed the specific Aboriginal right at issue. However, he determined that it is also necessary to consider the reasonableness of the consultation relating to that Aboriginal right within the context of the entire consultation process, including that concerning other rights.

Using this approach, Justice Savage found that the consultation taken with respect to the Ktunaxa’s asserted spiritual claims was indeed reasonable and appropriate. In coming to this decision, Justice Savage also considered the fact that the Aboriginal right at issue was not identified by the Ktanaxa as a primary concern until near the end of a long consultation process.

With respect to the Crown’s duty to accommodate, Justice Savage held:

[234]     The effect of good faith consultation may reveal a duty to accommodate, and the content of that duty will vary with the circumstances. This is not a case, however, where the issue is whether a duty to accommodate exists in the face of little or no accommodation offered. Rather, it is a case where significant accommodation was offered yet the First Nation asserts that the accommodation required to fulfill the duty amounts to a cessation of the contemplated Crown conduct; namely that the MDA should be quashed and the Proposed Resort cannot proceed. As such, I approach this issue as though a duty to accommodate does exist, whereby the accommodation offered is subject to a reasonableness standard of review.

The Court reviewed “extensive changes” that were made to the Proposed Resort during the various regulatory processes to accommodate Ktunaxa concerns and asserted Aboriginal rights.

Justice Savage again considered the fact that the Ktunaxa did not communicate their position that accommodation was not possible until very late in the process. Justice Savage found that the timeliness of evidence provided by the Ktunaxa was a relevant factor in determining whether or not the Minister’s efforts to consult were reasonable.

The Court concluded that “the record before me reveals a record of meetings, exchanges, and accommodation offers that amounts to a reasonable process of consultation and accommodation between the Minister and the Ktunaxa”.

Freedom of Religion

The Ktunaxa claimed that the Minister failed to appropriately consider their right to freedom of religion afforded under s. 2(a) of the Charter (freedom of religion) and that the MDA infringed their Charter rights.

The claim put forward by the Ktunaxa regarding the Minister’s failure to appropriately consider their s. 2(a) rights was based on the wording of the Minister’s published rationale for entering into the MDA. The Ktunaxa argued that because the Minister did not refer to their s. 2(a) rights, it was clear that the Minister did not properly consider this issue, despite the Ktunaxa having raised it on several occasions. Justice Savage did not agree, noting that he would instead consider whether the Minister’s actions and the accommodations offered addressed the substance of the asserted Charter right. His conclusion was that both the Minister’s rationale and the preceding consultation process appropriate addressed the substance of the Ktunaxa’s asserted s. 2(a) right.

In considering whether or not the Ktunaxa’s freedom of religion rights were infringed, Justice Savage applied the test established in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37: an infringement of s. 2(a) exists where (1) the claimant sincerely believes in a belief or practice that has a nexus with religion, and (2) the impugned measure interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.

Justice Savage found that the first part of the test was clearly satisfied.

In addressing the second part of the test, Justice Savage considered whether “s. 2(a) extends to protect against state action that reduces, or causes loss of, the meaning of or fulfillment gained from a religious practice, without coercing or constraining individual action.” The Ktunaxa did not argue that the Proposed Resort would interfere with any of their ceremonial dances, vision quests, prayers or worship, but rather that these actions would suffer a loss of meaning as a result of the Grizzly Bear Spirit leaving the region. Citing Kelly Lake Cree Nation v. British Columbia (Minister of Energy and Mines) (1998), [1999] 3 CNLR 126 (BCSC) and two US court decisions, Justice Savage held that the suffering of such a loss of meaning would not constitute an infringement of freedom of religion rights:

In my opinion, constitutional protection of freedom of religion does not extend to restricting the otherwise lawful use of land, on the basis that such action would result in a loss of meaning to religious practices carried out elsewhere. That is, the otherwise lawful use of land by others is not a form of coercion or a constraint on freedom of religion which s. 2(a) of the Charter protects. [Ktunaxa at para 296]

As a result, Justice Savage found that the Minister did not infringe the Ktunaxa’s s. 2(a) freedom of religion rights by entering into the MDA. Alternatively, Justice Savage noted that if he was found to be incorrect regarding the scope of s. 2(a), he would find that the decision would nonetheless be saved as the decision reflected a reasonable balance of the Charter value and statutory objectives.

Implications

The consultation undertaken was extensive and took place over an extended period of time and resulted “a record of meetings, exchanges, and accommodation offers that amounts to a reasonable process of consultation and accommodation” on a broad spectrum of issues. Although canvassed diligently by the judge, the case did not turn on the broad spectrum of issues, but on the consultation in relation to the belief that development would affect the exercise of a spiritual aspect of Aboriginal culture. The Court essentially found that where such an impact is not direct, but indirect, as it was claimed to be on the Grizzly Spirit in this case, then it can be reasonable to allow that development from both a consultation as well as a freedom of religion perspective. However, that reasonableness was assisted by the record of significant consultation and accommodation.

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