Issue Summary (from 2016)
For the first time, the Supreme Court of Canada was set to determine the merits of an Indigenous religious freedom claim under the Canadian Charter of Human Rights and Freedoms. This historic case raised serious concerns about third-party interests limiting and overriding religious freedom and the means by which religious communities can practise and manifest their faith.
The Christian Legal Fellowship and The Evangelical Fellowship of Canada were joint interveners in the case, which arises from the proposed development of a ski resort on land that is sacred to the Ktunaxa people. The Ktunaxa Nation opposes the construction of the ski resort on the basis that it would desecrate the sacred site and would interfere with a variety of their spiritual practices.
Ultimately, the B.C. Minister of Forests, Lands and Natural Resources approved the development but the Minister did not specifically address how the decision would impact the Ktunaxa Nation's section 2(a) Charter right to freedom of religion.
Analysis of the November 2017 Court Decision
The Supreme Court of Canada has ruled in a case called Ktunaxa Nation v. British Columbia, dealing with religious freedom and Indigenous rights. The Ktunaxa Nation opposed the development of a ski resort on their traditional territories – in particular in an area of land that is sacred to them – on the basis it would desecrate the sacred site and interfere with their spiritual practices.
The EFC and Christian Legal Fellowship intervened in this case because it raised several important questions about religious freedom. First, this case asked whether government must consider a religious freedom claim made under section 2(a) of the Charter, which guarantees the fundamental freedoms of conscience and religion.
Second, this case asked the court to clarify a lower court’s assertion that the guarantee of religious freedom in section 2(a) of the Charter does not protect religious expression that impacts a third party. And last, it asked to what extent the vehicles, instruments or means of expressing religious freedom are protected under section 2(a) of the Charter.
In the decision the majority of the Supreme Court confirmed that the provincial minister making the decision about the land development should have considered the section 2(a) claim of religious freedom. The freedom – of individuals and communities – to hold religious beliefs and to manifest or express them in worship and practice, or by teaching and dissemination, should have been considered (according to paragraph 71 of their decision).
However, the majority also concluded (in paragraph 60) that the minister’s failure to consider it was “immaterial” in this case, because the claim made by the Ktunaxa was outside the scope of the guarantee of freedom of religion in section 2(a) of the Charter. The freedom to worship does not protect the object of religious belief or the spiritual focal point of worship – in this case, the Spirit of the Great Bear.
This was not unexpected, as the guarantee of freedom of religion in section 2(a) has consistently been used to guarantee the freedom to believe, not the beliefs themselves.
The majority also reasoned (in paragraph 72) that to extend the interpretation of freedom of religion in section 2(a) to include protection of the object of belief would put deeply held personal or communal beliefs under judicial scrutiny, and would require the state and courts to assess the content and merits of religious beliefs. The court and other government bodies do not make judgments on the content of religious belief.
This is significant in light of the Wall case, which the Supreme Court heard on November 2, the same day its decision in Ktunaxa was released.
The Wall case was about whether the courts should review internal decisions relating to membership of religious organizations, or any private association. The case asked whether decisions about membership are matters of theology and doctrine, and whether in adjudicating those decisions the court becomes inappropriately involved in matters of religion.
The Ktunaxa case was particularly challenging in that it reflects, at its core, a conflict of worldviews. Land is of deep significance to Indigenous peoples, and for many, land cannot be separated from belief and worship. For the Ktunaxa, the Spirit of the Great Bear, the object of their belief, resides in the valley in question. Ktunaxa knowledge keepers teach that the kind of development proposed for the valley would drive Grizzly Bear Spirit from the area.
While the majority of the court did not comment on whether the protection of sacred spaces or places of worship is included in the freedom of religious expression guaranteed in section 2(a), the minority decision offered a more expansive view of freedom of religion.
The minority opinion clearly recognized the significance of land to the Ktunaxa Nation, and to the practice and expression of their beliefs. It recognized (in paragraph 117) that development of the ski resort would desecrate the sacred land and sever the Ktunaxa’s connection to the land, and to Grizzly Bear Spirit.
The minority, Justices Moldaver and Côté, found that there was a violation of freedom of religion under section 2(a) and interpreted the religious freedom guarantee in the Charter to include the protection of that which is essential to religious beliefs.
However, they nonetheless concluded that the minister’s decision not to grant the Ktunaxa the right to exclude others from developing on the land was reasonable in these circumstances.
Overall, the Ktunaxa decision is significant because it provides greater clarity and definition about what is and is not included in the Charter’s protection of religious freedom.
This case also highlights the need for greater understanding in initiatives to promote reconciliation between Indigenous and non-Indigenous Canadians. The conflict of worldviews in this case demonstrates some of the real and significant differences of belief that must be recognized and acknowledged in order for reconciliation to take place. Respect for Indigenous belief and culture, which has not historically been extended, is essential for reconciliation to advance.