Thursday Thinkpiece: Bakht & Collins on Freedom of Religion and the Preservation of Aboriginal Sacred Sites

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The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada
(2017) 62:3 McGill Law Journal (forthcoming)

Natasha Bakht, Associate Professor in the Faculty of Law, Common Law Section, Ottawa
Lynda Collins, Associate Professor in the Faculty of Law, Common Law Section, Ottawa

Excerpt: Abstract, Part IV, Part VI, and Part VII — excerpts are from an unedited manuscript and may not cited without permission.
[Footnotes omitted. They can be found in the original via the link above]


For centuries, the Canadian state engaged in systematic religious persecution of Aboriginal peoples through legal prohibitions, coercive residential schooling and the dispossession and destruction of sacred sites. Though the Canadian government has abandoned the criminalization of Aboriginal religious practices, and is beginning to come to grips with the devastating legacy of residential schools, it continues to permit the destruction and desecration of Aboriginal sacred sites. Sacred sites play a crucial role in most Aboriginal cosmologies and communities; they are as necessary to Aboriginal religions as human-made places of worship are to other religious traditions. The ongoing case of Ktunaxa Nation v BC represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion under section 2(a) of the Charter. Building on the ground-breaking work of John Borrows and others, we will argue that Aboriginal spiritual traditions have a home in this provision and merit a level of protection equal to that enjoyed by other faith groups in Canada. In general, section 2(a) will be infringed by non-trivial state (or state-sponsored) interference with an Aboriginal sacred site. Moreover, the approval of commercial or industrial development on an Aboriginal sacred site without consent and compensation will generally be unjustifiable under section 1.

Part IV: The Canadian Context – Religious Persecution of Indigenous peoples

In its eloquent introduction to the ground-breaking Métis rights decision in Daniels v Canada, the Supreme Court of Canada observed: “As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought.” In our view, it is important to account for historic religious inequities in evaluating the contemporary religious claims of Aboriginal peoples.

Claims such as that brought by Ktunaxa Nation do not occur against a historical ‘blank slate’. Rather, “Aboriginal peoples have a long and tragic history of severe persecution in the name of European religions.” In particular, Canada has historically violated Indigenous religious rights through (among other things) the outlawing of religious ceremonies, the operation of residential schools and the destruction of sacred sites.

The Canadian government first passed criminal laws prohibiting the ceremonial dancing of the First Nations in 1884. Violations carried a prison sentence ranging from a minimum of two to six months. The Potlatch Law, as it came to be called, remained on the statues of Canada until the Indian Act was revised in 1951. Outlawing the potlatch effectively destroyed the relevant First Nations’ traditional government as the ceremony was used to make law, confer responsibilities, judge wrongdoing and makes amends for crimes in the community. The significance of the potlatch to Aboriginal traditions, ceremonies and governance structures was unfortunately incomprehensible to white settlers. Arrests were made under these laws and many Aboriginal leaders languished in prisons further escalating the impact on the wider community. Aboriginal ceremonial items and symbols of government were seized by police and in many cases have never been returned. Aboriginal leaders reacted with indignation to the unwarranted interference with their customs and religion. An eloquent condemnation of this policy of repression was that of Chief Thunderchild, who queried: “Why has the white man no respect for the religion that was given to us, when we respect the faith of other nations?”

Just as it outlawed Aboriginal religious practices, the Canadian state simultaneously sought to exterminate Aboriginal spirituality and culture from within, through the devastating system of Indian residential schooling. Throughout the 1900s, more than 150,000 Aboriginal children were forced to attend Indian residential schools, a network of compulsory boarding schools funded by the Canadian government and administered by Christian churches. Among their many crimes, residential schools perpetrated state-sponsored religious coercion. The policy was to remove children from the influence of their families and culture, and assimilate them into the dominant Canadian culture and religion.

A key goal of the system has been described as cultural genocide or “killing the Indian in the child” by depriving them of their ancestral languages and religious teachings. Many Aboriginal children suffered physical and sexual abuse in residential schools and all suffered a shattering loss of culture, spirituality and community. Many lost their lives. “As many as half of the aboriginal children who attended the early years of residential schools died of tuberculosis, despite repeated warnings to the federal government that overcrowding, poor sanitation and a lack of medical care were creating a toxic breeding ground for the rapid spread of the disease.” While most of the 139 Indian Residential Schools ceased to operate by the mid-1970s, the last federally-run school closed in the late 1990s.

Several lawsuits against churches and the federal government for the injuries suffered, including physical and sexual abuse and the loss of culture and language, were initiated in the mid-1990s. The class actions were resolved in 2007 with the Indian Residential Schools Settlement Agreement that is intended to provide compensation to former students and to encourage truth and healing through the Truth and Reconciliation Commission of Canada.

The effect of the residential schools on Aboriginal peoples is still felt today. Residential school survivors suffer from high rates of poverty, suicide, depression, and anxiety disorders; roughly half of the survivors have come into contact with the criminal justice system. The lasting impact of the schools is also manifested in the rate of drug and alcohol abuse among survivors who have turned to substance abuse in an attempt to find relief from the painful memories of the past. The profound trauma inflicted by residential schools has also adversely affected parenting skills such that Aboriginal Canadians are suffering across more than one generation.

The legacy of residential schools on Aboriginal peoples has been referred to as a “collective soul wound.” However, survivors of residential schools (and the broader Aboriginal community) have courageously spoken out, sought redress, and undertaken a process of individual and collective restoration, often involving a return to traditional spiritual and cultural practices. This resurgence in Aboriginal spirituality is a source of hope and healing to survivors and their communities; it functions as a kind of agentic decolonization and forms part of the larger “Indigenous Resurgence” movement.

Aboriginal religious traditions offer a positive way forward for Aboriginal youth and link today’s communities to a time-honoured tradition and identity of which Aboriginal peoples can be proud. Unfortunately, the lack of legal protection for Aboriginal sacred sites is an impediment to the full restoration of Aboriginal spiritual traditions.

Part VI: Freedom of religion in the Canadian Charter of Rights and Freedoms

As explained above, the majority of challenges to the desecration of Aboriginal sacred sites have proceeded under section 35 of the Constitution and/or specific statutes (eg planning or forestry legislation) and they have largely failed. In seeking protection for Aboriginal sacred sites under section 2(a) of the Charter the Ktunaxa Nation case squarely raises the issue of the equal religious citizenship of Aboriginal Canadians. Section 2(a) is the home of religious freedom in Canada’s constitution, and is an appropriate lens through which to view the religious entitlements of Aboriginal and non-Aboriginal Canadians alike. Fortunately, the Charter’s guarantee of freedom of religion is eminently capable of accommodating the religious rights of Aboriginal citizens.

Religious freedom has been defined as fundamental because it is considered a basic right, essential to the functioning of a democracy. It allows individuals and groups to believe and practice what they choose without state intrusion. Protecting freedom of religion ensures that all people are treated with dignity and respect, that religious minorities are not the subject of discrimination, that the state remains neutral and impartial when it comes to matters of deeply-held personal beliefs and that religious belief cannot be preferred to non-belief. Internationally, freedom of religion or belief is a universal human right that is enshrined in both the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, among other key human rights documents.

In Canada, freedom of religion is protected under various human rights codes across the country that prohibit religious discrimination and make it illegal for governments and private actors to erect religious barriers to employment, housing, or services unless it can be demonstrated that accommodating religious beliefs or practices causes undue hardship. Constitutionally, section 2(a) of the Canadian Charter of Rights and Freedoms enshrines freedom of religion, preventing governments from enforcing laws or policies, without compelling justification, that have the purpose or effect of coercing individuals to abandon sincerely held religious beliefs or practices. Further, religious freedom is closely tied with the Charter’s commitment to religious equality under section 15. The principle of substantive religious equality moves beyond identical treatment on the basis of religion to focus instead on the burdensome effects of the application of facially neutral rules.

In the first religious freedom case to be decided under the Charter, Justice Dickson defined the right as follows:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the rights to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

In its early jurisprudence, the court articulated an expansive conception of religious freedom with a concomitant positive right to accommodation of religious practices. Notable cases that have upheld the constitutional protection of religiously-based practices include: the right of Jehovah’s Witness’ parents to deny a blood transfusion that was medically advised for their daughter; the right of condominium owners to build dwellings on their balconies for the Jewish festival of “Succot” in the face of by-laws prohibiting construction on balconies; and the right of a Sikh boy to wear a “kirpan” (a dagger with a metal blade) to school despite a school-board prohibition of weapons. “The Canadian conception of equal religious citizenship is founded on recognition that religious belief and affiliation are fundamental aspects of one’s identity, closely connected to cultural membership and often pervade all aspects of a believer’s life.”

Courts now use a two-prong approach in evaluating infringements of religious freedom. First, the court assesses whether the religious belief is sincerely held. Second, a court must ascertain whether there has been non-trivial interference with the exercise of the right. If both of these prongs are met, the interfering party must demonstrate that the infringement is justified.

The law’s understanding of religion is necessarily cultural and ridding it of its biases to include all subjects and their values is not without its hurdles. However, religious pluralism in Canada suggests that any legal protection of religious freedom must be one that is inclusive and indeed robust in its inclusion. Though our understanding of religious freedom originated and developed from certain majoritarian perspectives on what religion is, how it is lived and practiced in people’s lives and what constitutes an infringement of religion, the text of section 2(a) of Charter is broad enough to incorporate an understanding of protected religious practice that is generous and expansive. The Supreme Court of Canada’s analysis of section 2(a) supports such a contention:

“[R]espect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy.”

Accordingly, in demonstrating a violation of religious freedom under section 2(a), the perspective of the claimant is paramount. The claimant must first demonstrate a sincere belief in a conviction or practice that has a nexus with religion. The inquiry into sincerity must be as limited as possible to ensure only that the asserted belief is in good faith. The section 2(a) inquiry does not adjudicate truth. The practice need not be proven through scripture or dictated by religious leaders nor even practiced by others. The Canadian test of sincerity of belief is in keeping with international covenants that protect religious freedom. Inconsistent adherence to religious practice does not necessarily suggest a lack of sincerity as the claimant’s belief may change over time, may permit situational exceptions, or the claimant may not always live up to an ideal. This contextual examination of sincerity of belief ensures a wide appreciation for different faiths and different interpretations within a faith. It recognizes that religion as imagined may be different from religion as practised. The sincerity of belief criterion will generally be easy to satisfy in cases involving Aboriginal sacred sites.

Second, in order to demonstrate a violation under section 2(a), the impugned conduct must interfere with the claimant’s ability to act in accordance with his or her beliefs in a manner that is more than trivial or insubstantial. The section 2(a) test has been described as having a low threshold because it emphasizes subjective belief. This approach is entirely appropriate given that religious freedom is a fundamental right that delineates one’s outlook in life and that religious diversity requires thinking about religion’s many manifestations on its own terms. In Aboriginal sacred sites litigation, this second criterion should be interpreted in accordance with Indigenous worldviews, which situate sacred sites as part and parcel of spiritual practice, belief and indeed identity.

The protection of religious freedom however, is not absolute, but subject to reasonable limits under section 1 of the Charter. This section permits reasonably limiting protected rights where the government can prove that, on a balance of probabilities, such “limits can be demonstrably justified in a free and democratic society.” It is at this stage of the analysis that competing rights and interests are considered and balanced. The government must have a justifiable purpose and its means used to limit the Charter right must be proportional.

As Justice Dickson noted, “Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.” There have been cases where religious freedom has been limited on such bases. For example: the right of a small, rural community who believe that the Second Commandment prohibits their photograph from being willingly taken to be exempted from the photograph requirement for driver’s licenses was limited to preserve the province’s facial recognition data bank aimed at minimizing identity theft; and the right of a Muslim woman to wear a face veil for religious reasons while testifying in court was limited to protect an accused’s right to a fair trial. The freedom of religion of Indigenous communities, involving the protection of Aboriginal sacred sites, will justifiably be limited in only very few cases involving perhaps the safety, health or fundamental freedoms of others. As we argue below, where Indigenous peoples rights are concerned, section 1 must be interpreted with the important goal of reconciliation in mind.

Taking a context-sensitive approach that respects the unique nature of Aboriginal belief systems, it becomes clear that serious state interference with an Aboriginal sacred site (such as by permitting commercial or industrial activities on it) will usually violate section 2(a). Moreover, given the severe and permanent nature of the harm that accrues from the destruction of sacred sites, it will be difficult for the government to justify such an infringement in the absence of an urgent, overriding public purpose (eg the construction of a fire break to prevent the imminent spread of a forest fire, where there is no possible alternate location). Unless full consent is obtained, and compensation paid, governments will have difficulty meeting the requirements of section 1. These arguments will be further developed in the context of Ktunaxa Nation v BC.

Part VII: Case study – Ktunaxa Nation v BC

In 2012, the British Columbia Minister of Forests, Lands and Natural Resource Operations approved a Master Development Agreement to build a year-round ski resort on Crown land in southeastern British Columbia. The Ktunaxa Nation Council, representing the four Indigenous Ktunaxa communities in Canada, opposed the building of the ski resort. The land in question is known by the Ktunaxa as Qat’muk and it is an area of central spiritual significance, where the Grizzly Bear Spirit resides. Qat’muk and the proposed development of the ski resort have been the subject of extensive litigation for the past twenty years. The Ktunaxa have consistently opposed the Resort since it was first proposed in 1991. The Ktunaxa maintain that there is no way of building the resort that would eliminate or minimize the impact on their beliefs and practices. If the resort (or any form of permanent overnight human accommodation) is built, the Grizzly Bear Spirit will leave, depriving the Ktunaxa of the spiritual guidance they rely upon and the significance of their rituals. The rituals do not typically take place at Qat’muk. However, interfering with that territory will deprive the rituals that take place elsewhere of their spiritual meaning.

The Ktunaxa challenged the decision to approve the Master Development Agreement on the basis that building the resort infringes the right to freedom of religion they enjoy under section 2(a) of the Charter. In Ktunaxa Nation, both the trial judge and the British Columbia Court of Appeal found that the Minister did not violate the Ktunaxa’s freedom of religion in approving the Agreement to build the proposed ski resort. Both courts’ analyses relied heavily on a Eurocentric understanding of religion and a misapplication of the section 2(a) test. The lower court decisions failed to adequately consider the impact of the Minister’s decision from the claimant’s perspective, as is required by the 2(a) analysis and further, it ignored an Indigenous frame of reference that involves significant interweaving of spirituality with the land.

Section 2(a) Analysis

The Court dedicates little time to considering the subjective importance of the belief at issue to the Ktunaxa. While the trial judge and the Court of Appeal found that the Ktunaxa had demonstrated a sincere belief that has a clear nexus with religion, there is little attempt beyond a mere explication of the belief to try to understand the religious perspective of the Ktunaxa. According to the court, the effect of the decision to build the resort is, “the loss of meaning produced by the alleged desecration of a sacred site.” This characterization while minimally accurate does little to “get to know the Other”. It does not engender respect, understanding or empathy for a community whose Indigenous spiritual practices and beliefs do not look like religions as understood in the common law system. Invoking section 2(a) of the Charter to protect Indigenous spiritual beliefs stretches the law beyond the cultural context in which it was formed and continues to be understood. That the court was mired in an understanding of religious freedom that reified dominant conceptualizations of religion was evident from many of its comments. While we cannot ignore the origins of our laws or our history of colonialism, we also cannot permit majority Christian traditions or another religious view to be the definitional bias by which we implicitly or explicitly interpret all religious claims. Had the courts below begun their analysis from the perspective of the Ktunaxa, contextualizing their critical relationship to the land, a different analysis would likely have ensued.

As noted above, the Ktunaxa people believe that Qat’muk is a spiritual site of paramount importance where the Grizzly Bear Spirit makes its home. The Grizzly Bear Spirit is a significant source of guidance, strength, protection and spirituality for the Ktunaxa people. “Accordingly, Ktunaxa laws require the protection of this sacred place for present and future generations and include strict stewardship obligations and duties to the Grizzly Bear Spirit and Qat’muk.” Allowing the development of the proposed ski resort within Qat’muk, specifically permanent overnight accommodation of humans, would constitute a desecration that would irreparably harm the Ktunaxa’s relationship with the Grizzly Bear Spirit. If the resort was to be constructed, the Grizzly Bear Spirit would leave Qat’muk and the Kutnaxa would no longer receive spiritual guidance, rendering their songs and rituals inconsequential. These beliefs by the Ktunaxa about their relationship with the land “are consistent with the defining characteristics of many Indigenous ideologies that emphasize the connection between the spiritual and physical realms.” A deeper analysis of the religious perspective of the Ktunaxa might have permitted the court to come to a different conclusion on the section 2(a) infringement. Instead, the lower courts erroneously focused on the rights of those other than the religious freedom claimant.

The Court of Appeal held that “s 2(a) does not apply to protect the vitality of religious communities where the vitality of the community is predicated on the assertion by a religious group that, to preserve the communal dimension of its religious beliefs, others are required to act or refrain from acting and behave in a manner consistent with a belief they do not share.” The subjective and abstract nature of the decision’s effect on the Ktunaxa appears to be a problem for the Court, although one of the main purposes of religious freedom is its protection of subjective belief. When a state action prevents individuals from expressing or practicing their religious beliefs in a concrete manner, section 2(a) is invoked to constrain the state action, regardless of the actors’ beliefs. It is therefore bizarre for the Court to conclude that section 2(a) cannot be used to restrict or restrain the behaviour of those who do not share the belief. Indeed the beliefs of others are entirely irrelevant; rather, their actions with respect to the claimant demand scrutiny.

The second step of the section 2(a) test requires an interference with the claimant’s ability to act in accordance with his or her beliefs. To establish an infringement, this interference cannot be merely trivial or insubstantial. The Court does not explicitly conclude in Ktunaxa Nation whether the interference posed by the resort’s construction would satisfy the more than trivial or insubstantial threshold. Instead, the Court focused on the impact that preserving the Ktunaxa’s beliefs would have on people outside the Ktunaxa community. This incorrectly places an internal limit on s 2(a). Importantly, balancing freedom of religion with competing interests should take place at the section 1 justification stage, after a prima facie infringement of the Charter right has been established. This approach preserves a broad and liberal understanding of religious freedom. It also ensures that the claimant does not unfairly carry the justificatory burden when it should be borne by the government.

Had the Court explicitly considered the degree of the interference, it should have found that the resort construction satisfied the more than trivial or insubstantial threshold. The presence of the Grizzly Bear Spirit at Qat’muk is highly important for the Ktunaxa people, and causing the spirit to leave would deprive them of the meaning of a significant aspect of their belief system. There is no alternative for the Ktunaxa. If the ski resort is built, their relationship with the Grizzly Bear Spirit is destroyed. Moreover, an additional and weighty burden posed by the resort’s construction is that the Ktunaxa would be prevented from passing down their spiritual beliefs and practices to future generations. In Loyola High School v Quebec (Attorney General), Justice Abella held that “an essential ingredient of the vitality of a religious community is the ability of its members to pass on their beliefs to their children …” She characterized measures that disrupt the vitality of religious communities as profound interferences with religious freedom. Building the proposed resort would sever the “deep linkage” between the Ktunaxa spiritual beliefs and their communal relationship with the physical or natural world for both living and future generations. Any conception of religious vitality among many Indigenous peoples must capture the vital role that the land plays in Indigenous spirituality. “[T]o be First Nations is to be in a special relationship with land, what endangers their sacred sites ultimately puts their existence, survival, and well-being in jeopardy. Their sacred sites are therefore crucial to their existence, survival, and well-being.”

The interference with s 2(a) in this case is different from typical infringements of religious freedom in that they do not “force…[one] to act in a way contrary to his beliefs or his conscience.” However, the analysis of the resort’s effect on the Ktunaxa’s religious freedom need not focus strictly on the ability to act. Religious rituals necessarily encompass the meaning ascribed to them. To permit individuals to go through the motions of expressing their religious beliefs but deny them what affirms their belief in the ritual’s significance is to deny their freedom of religion. Rituals without meaning are no rituals at all. The proposed resort would interfere with the Ktunaxa’s ability to practice their beliefs by eliminating the spiritual significance they attach to the Grizzly Bear Spirit’s territory. Since the Grizzly Bear Spirit rituals do not take place at Qat’muk, the resort will not prevent the Ktunaxa from performing those rituals. Rather, it will prevent the rituals from achieving their intended results in relation to the Grizzly Bear Spirit. A Eurocentric understanding of religious rituals and practices would not appreciate the construction of the resort as a compelling interference with the Ktunaxa’s spiritual beliefs because it affects the abstract significance of the practices, and not the ability to perform the practices per se. However, the Court must view the situation from the perspective of those who hold the beliefs. Such an approach would have led the court to a more generous interpretation of s 2(a), keeping in mind the unique Aboriginal belief system in question.

Justificatory Analysis

The first requirement under section 1 asks if there is a legislative objective being pursued that is sufficiently important to warrant limiting a constitutional right. In Ross v New Brunswick School District No 15 the Supreme Court stated that “Freedom of religion is subject to such limitations as are necessary to protect public safety, order, health or morals and the fundamental rights and freedoms of others.” The limitation in question, the desecration of the sacred territory of Qat’muk, is not proposed to promote any of the aims noted in Ross. Preventing the construction of the proposed resort would not pose a threat to non-Aboriginal interests sufficient to justify limiting the Ktunaxa’s freedom of religion.

The area has been undeveloped for decades, and there is no evidence that prohibiting the construction of this commercial project will adversely affect non-Aboriginal individuals in the area. It is notable that any economic interests at stake are mere commercial prospects. The proposed ski resort might promote tourism and create employment in the area, but this loss of opportunity is not an infringement of rights comparable to the fundamental freedom of religion infringement that the Ktunaxa would experience. Indeed the integrity, spiritual health and morality of the Ktunaxa would be in peril should the proposed resort be built. For many Indigenous communities including the Ktunaxa, relations to the land are not simply a matter of possession and production. “Our relationship to the land defines who we are; we are the caretakers of Mother Earth.” The holistic manner in which such beliefs are embedded in daily life and preserved and transmitted for future generations must be appreciated.

Importantly, protecting the Ktunaxa’s freedom of religion would not infringe any constitutional rights of other parties. Rather, the Ktunaxa’s religious practice of leaving Qat’muk untouched may threaten the economic and property interests of those interested in building the proposed ski resort. However, since economic and property interests are not enshrined in the Constitution, freedom of religion should arguably be prioritized and afforded greater importance. To date, Qat’muk is unoccupied land that the Ktunaxa people have consistently made known is sacred to them. Moreover, the

protection of Qat’muk would not result in a complete exclusion of non-Ktunaxa people from the area, and would not force non-Ktunaxa individuals to adhere to or practice Ktunaxa spiritual beliefs. The protection of Ktunaxa spirituality and religious freedom under s. 2(a) would simply prevent the development of the proposed ski resort – a development which could be prevented for a variety of different reasons, including environmental concerns.

Commercial development has been both accepted and rejected by the courts as a pressing and substantial objective sufficient to override a Charter right. In Ktunaxa Nation, the fact that the land is to date uninhabited, that the commercial interest is merely a possibility, and that there is evidence that strongly indicates the viability of the commercial interest is meager, that is, it will not bring financial benefits to the surrounding communities, suggests that a valid government objective does not exist to warrant limiting the Ktunaxa’s freedom of religion.

However, because Ktunaxa Nation is a judicial review of an administrative decision, the justificatory analysis occurs under an administrative law approach under the Doré framework where the standard of review is reasonableness. One must ask, given the nature of the decision and the statutory and factual contexts, does the decision reflect a proportionate balancing between the statutory objective and the severity of the interference of the right? At this stage of the analysis, one cannot avoid Canada’s history of colonialism when considering whether limits on Charter-protected rights of Indigenous peoples can be demonstrably justified in a free and democratic society. A proportionality analysis involving First Nations requires an approach that prioritizes the Crown’s fiduciary obligation towards Canada’s Indigenous peoples. In other words, the goal of reconciliation must be at the centre of any analysis under section 1 whether in the administrative law context or under an Oakes analysis. This is the only just way to promote measures that remedy historic and systemic violations of Indigenous peoples’ rights to religious freedom.

The test for Aboriginal rights under section 35 of the Constitution urges courts to consider the perspective of Indigenous peoples. Similarly, when considering rights claims under the Charter by Aboriginal applicants courts must ensure that the unique perspectives and experiences of First Nations are understood and appreciated for what they are. A legal system that does not make a conscious effort to learn Indigenous values will be ill equipped to protect those values. In our view, Courts must overcome the common law’s inherent cultural biases when balancing an action’s impact on Indigenous spiritual beliefs with the benefits it may afford other people. Moreover, Indigenous rights and interests need not be seen as adverse to the interests of all other Canadians—indeed they may encompass them.

It is clear that building a ski resort on the sacred territory of Qat’muk would not minimally impair the Ktunaxa’s religious freedom. Indeed it would destroy their religious vitality. Further, the destruction of the Ktunaxa’s religious vitality cannot result in a proportionate balancing of the Charter right and the purported objective. The benefit derived from the infringement, potential economic growth to the surrounding non-Aboriginal communities, would not outweigh the severe adverse effects. The harm suffered by the Ktunaxa is real and significant, and the impact on non-Aboriginal people of refraining from building the ski resort is not particularly burdensome. This is not to suggest that there would be no impact, but that such restrictions on property interests are more than justified in order to preserve and protect the fundamental rights of the Ktunaxa. The judiciary is being asked to comprehend a religious perspective that defies Western notions of religion and perhaps more importantly, secular land usage. In this case, this means that the government must refrain from acting in a way that will destroy the sacred site of the Ktunaxa and their inseparable link between the land and their spirituality. Thus, Ktunaxa Nation v BC is an important starting point for the recognition of Aboriginal religious rights in land. With this case, the Supreme Court of Canada has the opportunity to turn a page in Canadian history and open a new era of respectful relationships with Aboriginal spiritual traditions.


  1. This is an interesting article, but underplays the degree to which the chambers judge might not have considered the religious belief to be legitimate — not because of his Eurocentric bias, but because the Ktunaxa’s precise understanding of the belief is recent (2009), based on one individual’s view, and arguably tailored to block the resort.

    See for example paragraph [316] of the chambers decision: “In my opinion, the aspect of the Proposed Resort that most offends the Ktunaxa, i.e. building construction and permanent human habitation, is fundamental to the basic concept of the Proposed Resort. If this was truly the Ktunaxa’s extant belief at the time, it is hard to understand how they could have participated in any of the land development processes without bringing this basis for their opposition to the Minister’s attention.”