Ski-Resort to Proceed, Despite Challenge

On March 20, 2012, a Master Development Agreement (“MDA”) was signed by Glacier Resorts Ltd. (“Glacier”) and the Minister of Forests, Lands and Natural Resource Operations for British Columbia (“Minister”) which permits Glacier to develop a year-round ski resort on Crown land near Invermere, B.C.

The Ktunaxa Nation are an Aboriginal people who have inhabited the Columbia and Kootenay River valleys since before contact with Europeans. The proposed ski resort is located on Ktunaxa Nation traditional territory.

In this judicial review application, the Ktunaxa Nation asked the Supreme Court of British Columbia (the “Court”) to find that the MDA violates two of their constitutionally protected rights:

(i) the duty to consult; and

(ii) their right to freedom of religion.

Specifically, it was argued that “the Minister failed to fulfill the duty to consult in respect of the Ktunaxa’s aboriginal right to exercise a spiritual practice which by its nature requires the protection of a sacred site”.

The Court undertook a lengthy discussion of the history of the proposed ski resort development from its origins (a March 1991 initial proposal) to the MDA of March 20, 2012. The Court also noted the Ktunaxa Nation’s lack of involvement and delay in relation to the consultation process.

The first hurdle for the Ktunaxa Nation was an evidentiary one. It sought to introduce expert evidence as part of the judicial review application. These five reports were not before the Minister when the MDA was approved and, as a general rule, the scope of admissible evidence in a judicial review proceeding is limited to the record that was before the decision-maker whose decision is under review.

The Ktunaxa Nation argued exceptions to this general rule. For example, extrinsic evidence may be admitted where relevant to an allegation concerning a defect in procedural fairness or jurisdictional error. Despite this, the Court found that the expert opinions fell outside of the exceptions to the general rule against the admissibility of extrinsic evidence on judicial review.

In reviewing the case law on point, the Court concluded that, to the extent that the expert reports were tendered to illustrate the nature of the consultation that occurred, the reports could be admitted. An analysis of whether the duty to consult has been fulfilled is, in part, one of procedural fairness. However, in the Court’s opinion, none of the reports spoke to this issue.

Duty To Consult 

A duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Three basic factors determine whether the duty to consult is triggered in any given situation:

(i) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right;

(ii) contemplated Crown conduct; and

(iii) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

While the scope of the duty to consult varies with the circumstances and exists along a spectrum, generally it depends on (a) a preliminary assessment of the strength of the Aboriginal rights asserted and (b) the seriousness and likelihood of the potential adverse effect of the contemplated Crown conduct on those asserted rights.

Good faith consultation may reveal a duty to accommodate to minimize impacts, but the duty to accommodate does not give Aboriginal groups a veto over all activities pending final proof of the Aboriginal claim.

The ultimate question in each case is whether the consultation was sufficient. The duty to consult is focused on process not outcome.

Analysis

In this case, the Court found that deep consultation was undertaken by the Minister. Following the consultation a significant accommodation was offered to Ktunaxa Nation, though Ktunaxa Nation argued that only cessation of the development would fulfill this duty. The Court considered the accommodations to be within a “range of reasonable responses which upholds the Crown’s honour and satisfied the Crown’s duty to consult and accommodate”.

Freedom of Religion

Section 2(a) of the Canadian Charter of Rights and Freedoms provides for every persons’ right to the freedom of conscience and religion.

The Ktunaxa Nation argued that, during the consultation process, it raised this Charter issue several times. Despite this, the Ktunaxa Nation argued, the Minister “never even put his mind to the Charter right at issue”. In the opinion of the Court, however:

 “…it does not matter whether the Minster’s Rationale contains the specific language of the Charter. What matters is that the Minister’s actions and the accommodations offered address the substance of the asserted Charter right where necessary.” [Emphasis in original]

In the Court’s view, the Minster’s Rationale and the preceding consultation process addressed the substance of the Ktunaxa Nation’s asserted Charter right.

Infringement of a Right

The Ktunaxa Nation did not argue that the development would interfere with the conduct of their ceremonial dances, or prevent them embarking on vision quests, or engaging in prayer or worship. The argument was premised on the asserted “loss of meaning” to actions that are otherwise unconstrained.

In addressing this argument, the Court found that freedom of religion does not extend to prevent otherwise lawful land use that might deprive a particular religious belief or subjective fulfillment. Certainly, interference cannot exceed the threshold of being beyond “trivial or insubstantial”, but the infringement must be based on facts that can be established and determined objectively. A subjective loss of meaning does not meet that threshold.

Regardless of this finding, the Court also determined that the MDA reflected a reasonable balance of this Charter right and that the development does not interfere with the Ktunaxa Nation’s freedom of religion in a way that is unreasonable or disproportionate.

In Summary

The Court dismissed Ktunaxa Nation’s judicial review application. Development of the proposed ski resort will proceed.

For more, or to review the full decision, see Ktunaxa Nation v British Columbia 2014 BCSC 568 (CanLII).

By James Early