# data[].attributes.body
Each individual has the right to profess any religion of their choice under the right to freedom of religion. It also includes the freedom to change one's religion or beliefs

# data[].attributes.body
The Ktunaxa First Nation

# data[].attributes.attachment_caption
The Ktunaxa have stated that the region, known as Qat'muk, has important spiritual interests for them since the beginning of the process. In 2009, they disclose

# data[].attributes.body
The legal story

# data[].attributes.attachment_caption
Freedom of Religion: Crash Course Government and Politics

# data[].attributes.attachment_link.title
Freedom of Religion: Crash Course Government and Politics #24

# data[].attributes.attachment_caption
What surprised me most was the decision's clarification that religious freedom does not include the protection of objects of religion

# data[].attributes.attachment_link.authors[].name
Written by David Bursey, R. Blake Williams, Sharon G.K. Singh and Charlotte Teal

# data[].attributes.attachment_link.title
Ktunaxa Nation v. British Columbia: The Duty to Consult and Protecting Religious Freedom Rights

# data[].attributes.attachment_link.description
On November 2, 2017, the Supreme Court of Canada released its decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. This case dealt

# data[].attributes.attachment_link.title
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) - SCC Cases

# data[].attributes.attachment_link.description
This page contains a form to search the Supreme Court of Canada case information database. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court.

# data[].attributes.body
What I'm mostly to remember is how aboriginal spiritual beliefs are protected under the Charter and section

# data[].attributes.attachment_link.readable_text
What is Section 35 of the Constitution Act?

Section 35 is the part of the Constitution Act that recognizes and affirms Aboriginal rights. The Canadian government did not initially plan to include Aboriginal rights so extensively within the constitution when the Act was being redrafted in the early 1980s. Early drafts and discussions during the patriation of the Canadian Constitution did not include any recognition of those existing rights and relationships, but through campaigns and demonstrations, Aboriginal groups in Canada successfully fought to have their rights enshrined and protected.

It is important to understand that Section 35 recognizes Aboriginal rights, but did not create them-Aboriginal rights have existed before Section 35.

Section 35 of the Constitution Act states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Section 35 of The Constitution Act, 1982 recognizes and affirms existing Aboriginal rights, but does not define them. What Aboriginal rights include has been the topic of much debate and discussion, and they have been defined over time through Supreme Court cases such as and Aboriginal rights have been interpreted to include a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one's own culture, and to establish treaties. ¹

Section 35 also recognizes that Aboriginal rights are "existing." The Supreme Court of Canada has stated that this means that any Aboriginal rights that had been extinguished by treaty or other legal processes prior to 1982 no longer existed and therefore are not protected under the Constitution. ² The significance of the term "existing" was further clarified in the case of R. v. Sparrow:

Section 35(1) applies to rights in existence when the Constitution Act, 1982 came into effect; it does not revive extinguished rights. An existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982. The phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time. ³

The Constitution Act recognizes Indian, Inuit and Métis as all Aboriginal with existing rights, and that recognition has been further defined for each group (as, for instance, for Métis in the decision). Aboriginal rights in general are based on the continued occupation of lands by Aboriginal peoples since before European settlement.

Section 35 falls outside of the Charter of Rights and Freedoms, and it begins Part II of the constitution. This allows Section 35 to be exempt from the "notwithstanding clause" that applies to the Charter. In other words, the federal government cannot override Aboriginal rights.

The fight for Section 35

Section 35 of the Constitution Act, 1982 was not included in Prime Minister Pierre Trudeau's initial proposal for patriation in 1980. Aboriginal Canadians had not been consulted about the new constitution, and there was initially very little reference to Aboriginal rights. Aboriginal groups across Canada became concerned that, with the transfer of constitutional powers from Britain to Canada, established agreements affirming Aboriginal rights and title would no longer hold legal weight. Aboriginal groups were also concerned that they would no longer be viewed as autonomous decision-makers on a federal level, and they saw the potential for the patriation to be yet another assimilationist policy, much like the 1969 White Paper, also proposed by the Trudeau government.

In response to the proposed patriation, many Aboriginal organizations and activists joined in demonstrations, fundraisers, and campaigns to have their title and rights explicitly recognized in the Constitution. One of these demonstrations was the Constitution Express, an action that contemporary activist Arthur Manuel describes as the most effective direct action in Canadian history, as it ultimately changed the constitution. ⁴ It took two years and the raising of concerns before an international audience, including the United Nations and the British Parliament, before the Canadian government finally agreed to include Aboriginal rights in the constitution. Because of the strong fight for recognition by Canada's Aboriginal peoples, Section 35 was added to the constitution in time to be formally patriated in 1982.

Section 35 initially consisted of clauses (1) and (2). Clauses (3) and (4) section was further developed in 1983-4 as a result of consultations with Aboriginal representatives during the First Ministers' Conference on Aboriginal Rights in March 1983. ⁵ These clauses were added after lengthy campaigns by women's groups, who were unrepresented in the initial discussions and experienced systemic gender discrimination from such legislation as Bill C-31.

Debates surrounding the value of Section 35

There has been much debate over the effectiveness of Section 35.

For example, Stó:lo author Lee Maracle considers that Section 35 reinforces colonialism by recognizing Canadian law as supreme, instead of breaking away from it as would be expected under a true nation-to-nation relationship. ⁶ Lawyer and judge Mary-Ellen Turpel also argues that by accepting the Constitution, a colonial form of rule based in Western (non-Indigenous) concepts and ideologies, such as individual rights and private property ownership, one is acknowledging the colonial power as the overarching, supreme law in which "everything has to be adjusted to fit the terms of the dominant system." ⁷

Some argue that there appears to be a disparity between the concept of Aboriginal rights being upheld by Section 35, and the daily lives of Aboriginal peoples, where many have been arrested for exercising what they understand as their Aboriginal rights, such as hunting or fishing:

Although s.35 guides court and government decisions that directly impact Indigenous Peoples, there remain a considerable number of Indigenous people who either are not directly aware of s.35 or believe it is meaningless in their lives. There are far more Indigenous people who personally know brothers, sisters, aunts, dads, and uncles who have been stopped, questioned, charged, and convicted for exercising their Aboriginal Rights, than who know of the existence or content of s.35. Section 35 to many Indigenous Peoples has remained a powerful yet invisible force.

Ardith Walkem and Halie Bruce ⁸

On the other hand, John Borrows of the Nawash First Nation and Law Foundation at the University of Victoria argues that the Constitution helps settle what was a troubled relationship between the Canadian government and Aboriginal Peoples, with the government initially able to infringe on Aboriginal rights without providing Aboriginal peoples with "the institutional means to resist the violation of their rights." ⁹ Borrows in fact suggests that the case Calder v the Attorney General of BC, in which Frank Calder lost his case for Aboriginal title in 1973, may have turned out differently had Section 35 been in place at that time. Borrows also feels that recognition of Aboriginal rights in Section 35 places the issue "squarely in the public eye"-crucial for the Canadian public's acceptance of pre-existing Aboriginal rights. ¹⁰

Given that legal cases have at times upheld Aboriginal rights (e.g., Sparrow) and at other times allowed infringement, the true impact of Section 35 remains to be seen.

By Erin Hanson

Recommended resources for further reading
Books & articles
Asch, Michael. Home and Native Land: Aboriginal Rights and the Canadian Constitution. Agincourt: Methuen, 1984.

Aki-Kwe/Mary Ellen Turpel, "Aboriginal Peoples and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges." Canadian Women's Studies 10.2 & 3 (1991): 149-157. Available online here via York University.

Walkem, Ardith and Halie Bruce, eds. Box of Treasures or Empty Box? Twenty Years of Section 35. Vancouver: Theytus, 2003.
Films
Dancing Around the Table, Part One. Dir. Maurice Bulbulian. National Film Board of Canada, 1987.

Dancing Around the Table Part Two. Dir. Maurice Bulbulian. National Film Board of Canada, 1987.

Endnotes

s Juristocracy. Cambridge: Harvard University Press, 2004. 196.

3 [1990] 1 S.C.R. 1075. Accessed online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/609/index.do

4 Manuel, Arthur. Guest lecture, Introduction to First Nations Studies. University of British Columbia, Vancouver, B.C. 24 March 2009.

5 Asch.

6 Maracle, Lee. "The Operation was Successful, But the Patient Died." In Walkem, Ardith and Halie Bruce, eds. Box of Treasures or Empty Box? Twenty Years of Section 35. Vancouver: Theytus, 2003. 309-315.

7 Aki-Kwe/Mary Ellen Turp

1 Asch, Michael. Home and Native Land: Aboriginal Rights and the Canadian Constitution. Agincourt: Methuen, 1984. 30.

2 Hirschl, Ran. Toward

el, "Aboriginal Peoples and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges." Canadian Women's Studies 10.2 & 3 (1991): 149-157.

8 Walkem, Ardith and Halie Bruce, eds. Box of Treasures or Empty Box? Twenty Years of Section 35. Vancouver: Theytus, 2003. 10.

9 Borrows, "Measuring a Work in Progress: Canada, Constitutionalism, Citizenship and Aboriginal Peoples." In Walkem and Bruce, 225.

10 Borrows, 225-6.

# data[].attributes.attachment_link.description
What is Section 35 of the Constitution Act? Section 35 is the part of the Constitution Act that recognizes and affirms Aboriginal rights. The Canadian government did not initially plan to include Aboriginal rights so extensively within the constitution when the Act was being redrafted in the early 1980s.

# data[].attributes.attachment_link.readable_text
The Supreme Court of Canada granted leave to appeal the decision of the British Columbia Court of Appeal in Ktunaxa Nation v British Columbia. This case has important implications for indigenous communities seeking to protect their sacred sites from desecration.
What is the case about?
After a long process, the British Columbia Minister of Forests, Lands and Natural Resource Operations approved a Master Development Agreement for a ski hill operation proposed by Glacier Resorts.

Since the beginning of the process, the Ktunaxa have said that they have important spiritual interests in the area, which is known as Qat'muk. In 2009, they disclosed that their traditional knowledge was that overnight stays by humans in the Qat'muk area would destroy its spiritual value. The Qat'muk is the home of Klawla Tuklulak?is, the Grizzly Bear Spirit. Overnight stays, such as in the proposed ski resort, would cause the Grizzly Bear Spirit to abandon the Ktunaxa, leaving them without its spiritual guidance and rendering many of their religious and cultural practices meaningless[1]. As a result, the community's view was that no accommodation was possible since any development would lead to this result.

The Ktunaxa challenged the Minister's approval of the development by judicial review, arguing that the decision infringed their freedom of religion protected under s. 2(a) of the Charter of Rights and Freedoms, and that the Minister had failed to fulfill the duty to consult and accommodate as required for Crown decisions affecting Aboriginal rights protected by s. 35 of the Constitution Act, 1982. Notably, they did not argue their Aboriginal rights under s. 35 and religious freedom under s.2(a) of the Charter intersected; rather they argued their s.2(a) right should be interpreted as if it were asserted by a non-Aboriginal group. [2]
The decisions so far
The chambers judge denied the Knutaxa's application for judicial review. In the context of judicial review of an administrative decision, the test for religious freedom under the Charter requires the claimant to establish that they have a sincere belief that is in some way connected to religion ("having a nexus with religion", as the courts put it), and that the government has interfered with their belief in a way that is more than trivial or insubstantial[3]. If the claimant shows this, then the court will ask whether the decision reflects a proportionate balancing of the Charter protection and the Minister's objectives[4].

The Knutaxa's claim failed at the first step of this analysis before the chambers judge. A restriction on an otherwise lawful use of land simply because it would result in a loss of meaning for a religious practice carried out elsewhere was, in his view, only a "trivial or insubstantial" interference with religious freedom. The judge concluded that s. 2(a) was not infringed.

The British Columbia Court of Appeal agreed with the chambers judge's conclusion, but held that he had taken too narrow an approach to religious freedom by focusing only on the individual component of religious freedom and ignoring its important communal dimension[5]. In this case, a central part of the claim was that the proposed development would undermine the vitality of the religious community by severing "the deep linkage between the asserted Ktunaxa belief and the Ktunaxa "communal institutions and traditions"[6]. Nonetheless, the Court of Appeal concluded freedom of religion was not infringed because 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 that they do not share."[7]

On the issue of the duty to consult, the chambers judge and the Court of Appeal both held that the consultation had been adequate. The Ktunaxa argued that the Minister had made a mistake by narrowly characterizing the Aboriginal right that triggered the duty to consult and accommodate as "a right to preclude permanent development" rather than as a right to "exercise spiritual practices which rely on a sacred site and require its protection"[8]. The Court of Appeal disagreed, concluding that "the Minister (and the chambers judge) properly considered the scope of the s. 35 right by focusing on the effects of the state action on the general Aboriginal right."[9]
Some implications
This appeal could have significant implications for communities whose religious and cultural practices are deeply connected to sacred sites. If the Supreme Court of Canada affirms the BC Court of Appeal's reasoning on the religious freedom issue, it will be very difficult for other indigenous communities to use s. 2(a) of the Charter to prevent state-sanctioned interference with their sacred sites, especially if courts have not yet recognized their title to the lands on which those sacred sites are located. And the Court of Appeal's reasoning is not limited to cases where a religious belief requires the total exclusion of other individuals from a sacred site; it suggests that a belief that imposes any constraint on the freedoms of other people would not be protected under s. 2(a).

It is easy to understand why a court would be nervous about allowing the beliefs of the members of one spiritual tradition to dictate the behaviour of non-members. One angle to consider is whether this concern should be used to narrow the scope of s. 2(a). In Canadian constitutional law, consideration of the competing rights of other individuals is often left for the second stage of the analysis-whether the interference with the constitutional right is acceptable because it is proportionate. This approach would allow for an explicit balancing of different rights and rights holders. It is also worth noting that, partially because the Knutaxa argued their religious freedom should be interpreted as if it were asserted by a non-Aboriginal group, the process by which the sacred site came to be subject to settler private property rights is absent from the Court's story.

This kind of case may be more easily argued as an Aboriginal title claim. Canadian law usually thinks of the right to exclude others as a property right, not as a fundamental freedom. For example, settler religious sites like temples, churches and cemeteries are protected as private property from trespass by non-members. It is possible to argue that the exclusion of others from a particular site as a principle of indigenous law should be considered proof of Aboriginal title.[10]

However, this approach, too, would face challenges. The land may be considered by the courts to have been "surrendered" or the title to have been "extinguished" by government action. The community might have moved away from a particular sacred space at some point in their history. Or-as in this case-the land may be subject to overlapping title claims. (Both the Ktunaxa and the Shuswap identify the Qat'muk area as part of their traditional territories). In such circumstances, Aboriginal title is unlikely to get communities much further towards protecting their sacred sites.

On the duty to consult issues in this case, I will only note that it is difficult to see how you can assess the negative impact of a proposed state action on an asserted s. 35 right-an essential step in the duty to consult analysis-without first defining that s. 35 right in terms of the culture and practices of the indigenous community. By skipping this step, you risk failing to appreciate what the protected practices mean to the community, and as a result, discounting the ways the state action would harm those practices. This seems at odds with the Supreme Court's direction in cases like R v. Sparrow that "it is crucial to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake."

The way in which this case deals with religious freedom rights under s. 2(a) of the Charter and Aboriginal cultural rights under s. 35 of the Constitution Act will have significant impacts on indigenous communities across Canada. There is limited case law in Canada dealing with protection of indigenous sacred and burial sites, in large part because indigenous communities have been cautious about trusting Canadian law to protect these sites. The Ktunaxa Nation case will set an important precedent that will determine whether the Canadian courts are seen as an effective remedy for indigenous groups seeking to protect the most important spiritual aspects and sites of their cultures.

By Krista Nerland

___________________________

[1] Court of Appeal decision at para. 9.

[2] Court of Appeal decision at para. 45.

[3] Syndicat Northcrest v. Amselem, [2004] 2 SCR 551, 2004 SCC 47 at paras. 56-63.

[4] Loyola High School v. Quebec (Attorney General), [2015] 1 SCR 613, 2015 SCC 12 at para. 39.

[5] Court of Appeal decision at paras. 63-64.

[6] Court of Appeal decision at para. 68.

[7] Court of Appeal decision at para. 74.

[8] Court of Appeal decision at para. 81.

[9] Court of Appeal decision at para. 82.

[10] See, eg, "The Law of the Land: New Jurisprudence on Aboriginal Title", The Supreme Court Law Review v. 67, 2014.

What kind of cases require deep consultation?

The extent of consultation and accommodation required in a given case depends on the strength of the claim to an Aboriginal right, treaty...
Read More...

by Senwung Luk and Krista Nerland

In a disappointing decision released by the Supreme Court of Canada ("SCC") today, a majority of the Court decided that...
Read More...

# data[].attributes.attachment_link.title
Indigenous religious freedom case heads to Supreme Court - OKT | Olthuis Kleer Townshend LLP

# data[].attributes.attachment_link.description
The Supreme Court of Canada granted leave to appeal the decision of the British Columbia Court of Appeal in Ktunaxa Nation v British Columbia. This case has important implications for indigenous communities seeking to protect their sacred sites from desecration. What is the case about?