Ktunaxa Nation v BC: Bringing Aboriginal Spirituality into Section 2(a) of the Charter
The British Columbia Court of Appeal (“BCCA”) case Ktunaxa Nation v BC, 2015 BCCA 352 [Ktunaxa], has some problematic implications for the scope of religious freedom under section 2(a) of the Charter. Aboriginal spirituality has never officially been recognized under 2(a). It is likely that Ktunaxa will go to the Supreme Court of Canada (“SCC”). If it does, the SCC should be mindful of some important questions about the scope of 2(a), and what that might mean for Aboriginal spirituality.
The case involves the development of a ski resort on land that the Ktunaxa First Nation claims is spiritual land for their people. The Ktunaxa argue that should any overnight human accommodation be built there, their relationship with the Grizzly Bear Spirit who inhabits those lands will be irreparably damaged. They argue that the decision of the Minister of Forests, Lands and National Resources Operations to approve the resort’s development infringes their right to religious freedom under section 2(a).
Justice Goepel for the BCCA starts out with the standard test outlined in Syndicat Northcrest v Amselem,  2 SCR 551 [Amselem]: a claimant must demonstrate a sincere belief in a practice or belief that has a nexus with religion in order to trigger protection under section 2(a). Once that belief is triggered, the claimant must show that the interference with his or her belief is not trivial or insubstantial.
Justice Goepel finds that the Ktunaxa have successfully asserted a sincere spiritual belief that has a clear nexus with religion. However, Justice Goepel still does not think that the scope of section 2(a) can extend to protect the Ktunaxa in this case. He uses the framework outlined in Loyola High School v Quebec (Attorney General),  1 SCR 613 [Loyola] as the basis for his analysis, in order to determine whether the Minister allowing the development of the resort on this land was a measure that would “undermine the character of lawful religious institutions and disrupt the vitality of religious communities” (Ktunaxa, para 66).
Ultimately, Justice Goepel concludes that “the vitality of [the Ktunaxa] religious community as a whole depends on a requirement imposing constraints on people who do not share that same religious belief” (para 73) and that this cannot be protected under section 2(a). To justify this, he emphasizes the delimitation in Amselem that “conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected” (para 70).
I want to outline a number of reasons for why I find this holding problematic. First and foremost, I have difficulty seeing how the Ktunaxa’s right to religious freedom—a Charter right and fundamental freedom—is comparable to a right to develop land for commercial use—not a recognized right in either our Charter or our constitution—such that the former’s infringement on the latter is enough to bar the former completely from Charter protection.
But, even if we do accept that the right to commercial development is important to our society and should be protected in some form, this holding still ignores the SCC’s common refrain that, while freedom of religion is not absolute, it is best to reconcile any competing values under section 1 rather than within 2(a) itself (Multani v Commission scolaire,  1 SCR 256, paras 26-30). This allows the court to give an “expansive” definition of freedom of religion (Amselem, para 40). By excluding this claim from the scope of 2(a), the court is putting the burden on Aboriginal groups rather than on the state. It is not entirely clear from the case that the BCCA is saying no claim of this kind can succeed. However, by limiting the success of this kind of claim, the BCCA has sent a message that Aboriginal parties have additional burdens to face before they can get their spiritual beliefs acknowledged within the scope of 2(a) proper.
The issues with the Ktunaxa’s claim as it relates specifically to Aboriginal spirituality are two-fold. First, the innate foreignness of Aboriginal spirituality, with its emphasis on a communal spiritual relationship with the natural world, is vastly different from the mainstream religions that often are the subject of 2(a) claims before the courts. Second, the nature of Aboriginal spirituality lends itself to some concerns about floodgate issues that are surely back-of-mind when making rulings like this. I will briefly touch on each of these issues in turn.
Most of the religious freedom claims that come before the courts deal with the more mainstream religions of Judaism, Christianity, and Islam, which are all united by belief in a monotheistic and personal god. Aboriginal spirituality is quite different from this.
Before I continue, however, I want to note the importance of acknowledging that Aboriginal groups in Canada are diverse and many—I do not want to be reductive in painting Aboriginal spirituality with broad brushstrokes. I generalize only to make a point. Marc Fonda’s article “Are they like us yet?” provides a very interesting perspective on how land relates to Aboriginal spirituality. He writes: “For Aboriginal persons, land is not merely material, and nature is not merely natural. Both have spiritual dimensions and make up a sacred substance, which is the source, sustenance, and end of all cosmic life on which everything depends” (Fonda, 5). Aboriginal spirituality is often communal and deeply interconnected with the natural world, and land in particular. This conflicts with the European “edifice complex,” which has difficulty fathoming the “notion of sacred space outside of a church” (Fonda, 6).
One would hope that courts would be particularly aware of the delicacy required in approaching matters of Aboriginal spirituality. But it seems that, at least in Canada, the courts have not wanted to touch the matter with a ten-foot pole. The only post-Charter case involving Aboriginal freedom of religion, R v Sioui,  1 SCR 1025, expertly avoided the question of section 2(a) protection altogether. While the court found that a ritual carried out in a provincial park by a Huron band was protected, they stated that it was protected by a treaty, not by section 2(a). The court sidestepping an active acknowledgment of Aboriginal spirituality under the protection of 2(a) may have to do with the fact that Aboriginal spirituality is fundamentally different from the other types of religion typically dealt with in section 2(a) claims.
This uniqueness of Aboriginal spirituality leads to the second problem—the floodgates issue—as it provides an explanation for the court’s reluctance to include these sorts of claims under section 2(a). Limiting the use of land because of the religious beliefs of one small group has the possibility to be very detrimental to development, and very hard to control. Ben Berger hits the nail on the head: “What is difficult about freedom of religion is the sheer scope of possible conflict between religion and government objectives combined with the enormous challenge of adjudicating the internal meaning and significance of a given religious practice or belief not shared by the secular state” (Berger, 28). A religious practice or belief that effectively excludes vast swathes of land from development because that development would infringe those beliefs brings a whole new meaning to the “sheer scope of possible conflict.”
It could be that the BCCA’s decision in Ktunaxa has nothing to do with the distinctiveness of Aboriginal spirituality, or a fear of floodgates. I find it difficult to conceive, however, that the court would have arrived at this conclusion had the circumstances been tweaked to exclude the “Aboriginal” element. Say that someone has decided to sell little statues of Ganesh in a Christian church. Christianity restricts the rights of others in this sense by banning the worship of other gods within the confines of their places of worship. I doubt the court would deem the church’s demands for the statues to be sold elsewhere as an “interference with the rights of others.” In fact, had it been another example where a commercial activity is set up in such a way that it destroys the sanctity of a religious place, I imagine the court would do some legal acrobatics and—at the very least—allow the claim in under the umbrella of 2(a).
In the end, regardless of the actual reasons for the BCCA’s decision, the result is the same. By excluding these sorts of claims from 2(a) protection, the BCCA has in effect excluded many types of Aboriginal spirituality—which generally include a spiritual component that relates to a relationship with the land—from Charter protection.
If this case goes up to the SCC, I suggest they revisit the approach crafted by Justice Lebel in a case that also grappled with issues of land and religion. In Congrégation v Lafontaine,  2 SCR 650 [Lafontaine], the municipality of Lafontaine refused to assist a congregation of Jehovah’s Witnesses in locating a suitable piece of land to build their place of worship, and also did not provide any justification in denying two of the congregation’s applications for rezoning. The Court of Appeal said that the municipality did not have any positive duty to facilitate freedom of religion in ensuring that each religious community has a place of worship. The SCC allowed the appeal, but based their decision on administrative law grounds. It is Justice Lebel’s dissent that I find particularly interesting.
Justice Lebel held that the zoning bylaw does not infringe section 2(a) by making it impossible for the congregation to build a place of worship in the municipality, primarily because there were other places available for the congregation to build their Kingdom Hall. Justice Lebel then explored an interesting hypothetical in obiter—and one that I find analogous to Ktunaxa—of whether the zoning bylaw would infringe 2(a) if there were not any alternative building locations. Lebel J says that there would be an infringement in that case. He states that the Kingdom Hall is “necessary to the manifestation of their religious faith” (Lafontaine, para 74) and should the congregation be prevented from establishing such a place, their freedom of religion would be infringed.
This, in my opinion, is the correct justification to support expanding the scope of section 2(a) to include the Ktunaxa claim and other Aboriginal claims like it. This area of land is “necessary to the manifestation of their religious faith.” As was made clear by the Ktunaxa, there are no alternatives—if the ski resort is built, their relationship with the Grizzly Bear Spirit is destroyed. This case, like the Lafontaine hypothetical, is clearly one where religious freedom would lose any real meaning unless the state took positive action to protect it.
If this case does end up at the SCC, I would hope that the SCC would not focus all of its attention on the administrative law issues or issues of title that arise. I would hope the SCC could acknowledge what Justice Lebel did—that, “in certain exceptional circumstances, positive government action may be required to make a fundamental freedom meaningful” (Lafontaine, para 77). For Aboriginal parties specifically, who have a painful history of religious indoctrination and suppression of their own spiritual beliefs in Canada’s residential schools, there may be a need for greater sensitivity in making 2(a) meaningful for them. Any issues or concerns with the expansive scope of such a claim and the possibility of floodgates can be dealt with flexibly and contextually under section 1, putting the burden of justifying these restrictions on the state. More importantly, including these claims under the broad scope of this right would be a positive step in recognizing Aboriginal spirituality and religious freedom once and for all under the Charter.