KTUNAXA NATION COUNCIL V. BRITISH COLUMBIA
Amnesty International was represented in this case by Margot Venton, Kaitlyn Mitchell, and Randy Christensen
WHAT IS THIS CASE ABOUT?
This case concerns the proposed building of a ski resort in the Upper Jumbo Valley in British Columbia, at the heart of an area held by the Ktunaxa Indigeous peoples to be of central spiritual significance. According to Ktunaxa spiritual beliefs, the area is the Grizzly Bear Spirit’s home or territory, and building the ski resort on that territory would constitute a desecration which would irreparably harm their ability to exercise their spiritual beliefs.
The proposed ski resort was approved by the British Columbia Minister of Forests, Lands and National Resource Operations on 20 March 2012. The Ktunaxa Nation Council sought judicial review of the Minister’s decision to approve the project, arguing that approving the ski resort violated their freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms and their right to be consulted and accommodated under section 35 of the Canadian Constitution.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International intervened before the Supreme Court of Canada in the Ktunaxa Nation Council’s appeal of a British Columbia Court of Appeal judgment finding that the Ktunaxa’s rights under section 2(a) of the Charter or section 25 of the Constitution were not violated.
In our intervention, Amnesty International argued the Supreme Court should conduct its analysis of the issues consistently with international human rights law norms. We did not take a position on the facts alleged by the parties, but were supportive of the Ktunaxa’s interpretations of freedom of religion and duty of consultation, accommodation, and consent in Canadian law, as they are consistent with international norms.
Amnesty International’s submissions highlighted that international law accords special protections for Indigenous peoples to ensure substantively equal protection under general international human rights instruments. States must provide a high standard of protection for all rights of Indigenous peoples and Indigenous persons, consistent with the recognition that a history of discrimination, marginalization, and dispossession has left Indigenous peoples in a situation of extreme disadvantage and greatly heightened risk of further harm. In particular, international law has established rigorous standards to protect Indigenous peoples’ relationships to their traditional lands, and especially to spiritually important places, in order to protect and fulfil Indigenous peoples’ rights to culture, identity, livelihood, health, and a wide range of associated rights. Rigorous standards are necessary because land use decisions affecting the traditional lands of Indigenous peoples can have significant human rights implications that may not be apparent to the decision-makers.
STATUS OF THE CASE
The Supreme Court hearing took place on 1 December 2016. In a disappointing judgment rendered on 2 November 2017, the Court dismissed the appeal. Regarding a violation of s.2(a) of the Charter, the Court ruled that the Ktunaxa did not establish that the Minister's decision interfered with their freedom to believe in the Grizzly Bear Spirit or their freedom to manifest that belief, and for the state to have an obligation to protect objects of belief like the Grizzly Bear Spirit would be outside the scope of s.2(a)'s right to freedom of religion.
Furthermore, the Court ruled that the Minister's decision that the Crown met its duty to consult and accommodate under s.35 of the Constitution was reasonable. The Ktunaxa's spiritual claim to Qat'muk was acknowledged, and negotiations and deep consultations had taken place, spanning two decades. Thus, ultimately, the Crown's consultation was not inadequate and s.35 of the Constitution was not violated.
For these reasons, the Ktunaxa's appeal was dismissed.
Supreme Court of Canada's judgment in the Ktunaxa case
British Columbia Court of Appeal judgment in the Ktunaxa case
Amnesty International’s application to intervene before the Supreme Court of Canada in the Ktunaxa case
Amnesty International’s submissions to the Supreme Court of Canada in the Ktunaxa case
"Ktunaxa profoundly disappointed but undeterred by Supreme Court ruling" (3 November 2017)
"It's not 'consultation' if government isn't listening" (28 November 2016)