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Digest of the Week — Charter Protection for Aboriginal Religious Freedom

Ktunaxa Nation Council v. British Columbia (Minister of Forests, Lands and Natural Resource Operations) |
2015 CarswellBC 2215 |
British Columbia Court of Appeal

Aboriginal law | Constitutional issues | Canadian Charter of Rights and Freedoms

Respondent company began long process to obtain permission to build year-round ski resort on Crown land — Petitioner First Nation K believed that proposed resort lay at heart of central area of paramount significance, Q — K maintained that Q was Grizzly Bear Spirit's home or territory and development of proposed resort within area of Q would constitute desecration, effect of which would be to irreparably harm relationship with Grizzly Bear Spirit — K and respondent Minister of Forests, Lands and Natural Resource Operations entered into formal consultation agreement — Extensive changes had been made to proposed resort to accommodate K's concerns and asserted Aboriginal rights — Minister approved master development agreement with company — K sought judicial review — Chambers judge held that s. 2(a) of Canadian Charter of Rights and Freedoms did not confer right to restrict otherwise lawful use of land on basis that such use would result in loss of meaning to religious practices carried on elsewhere — Chambers judge held that process of consultation and accommodation of asserted Aboriginal rights under s. 35 of Constitution Act was reasonable — K appealed — Appeal dismissed — Chambers judge took too narrow approach; presence of coercion or constraint on individual conduct is not only means by which claimant may demonstrate an infringement of s. 2(a) of Charter — However, s. 2(a) did not extend to protect particular religious belief asserted by K in this case — Material effect on s. 2(a) Charter right was loss of meaning produced by alleged desecration of sacred site — Alleged state interference consisted of type of prohibited human activity that had consequential impact on spiritual fulfilment of K religious community as whole — Traditional framework of analysis for s. 2(a) was based on understanding of asserted religious beliefs being private, belonging to individual — K derived subjective meaning from practice that required others to refrain from development in Q — K derived subjective spiritual meaning from, and submit that vitality of their religious community as whole depends on, requirement imposing constraints on people who do not share that same religious belief — It was not consonant with Charter principles to say that group, in asserting protected right under s. 2(a) that implicates vitality of their religious community, is then capable of restraining and restricting behaviour of others who do not share that belief in name of preserving subjective religious meaning — Minister's decision to approve master development agreement did not violate K's freedom of religion guaranteed under s. 2(a) of Charter.
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