HOW THE CHARTER CAN PROTECT INDIGENOUS SPIRITUALITY; OR, THE SUPREME COURT'S MISSED OPPORTUNITY IN KTUNAXA NATION.

AuthorWilliams, Kent

I INTRODUCTION 2 A. THE DISTINCTION BETWEEN THE CHARTER AND S. 35 3 B. CANADA'S CUMBERSOME PATH TO ACCEPTING UNDRIP 4 II INVESTIGATION 6 A. UNDRIP 8 B. INTERNATIONAL EXPERIENCES 16 i. United States Of America 17 ii. India 20 iii. Africa 21 iv. Central And South America 22 v. New Zealand 23 III CONCLUSION 25 I INTRODUCTION

The case of Ktunaxa Nation Council v British Columbia ("Ktunaxa Nation") presented Canada's highest court with an opportunity to consider how the constitutional right to freedom of religion interacts with Indigenous spirituality as it relates to spiritual connections with land and place. (1) Using the Ktunaxa Nation decision as a lens, this paper will investigate Indigenous rights protection in Canadian constitutional law by asking if the scope of the constitutional right to freedom of religion ought to be demarcated to preclude the protection of Indigenous spiritual practices tied to land. Using freedom of religion as a test case, this investigation also strives to broadly and prospectively address the influence of reconciliatory ideals, as shaped by international and domestic Indigenous rights developments, on constitutional reasoning.

Because the Ktunaxa Nation decision will act as the lens through which the viewpoints expressed herein are focused, a brief overview of the facts is warranted. The Ktunaxa peoples were engaged in ongoing consultation with the Government of British Columbia ("BC") regarding a proposed year-round ski resort in the Jumbo Valley-a place referred to by the Ktunaxa peoples as Qat'muk. In Ktunaxa culture, Qat'muk is a sacred place home to the highly-revered Grizzly Bear Spirit which is a focal point of Ktunaxa spiritual beliefs. The Ktunaxa peoples objected to the proposed development at Qat'muk for the belief that any permanent development would drive Grizzly Bear Spirit away and render many of their spiritual beliefs and traditions devoid of spiritual meaning.

Considering the consultation to have been completed according to its constitutional duty, BC approved the development despite the Ktunaxa peoples' persisting concerns. BC's decision was challenged by the Indigenous complainants as having violated their freedom of religion contrary to s. 2(a) of the Charter of Rights and Freedoms ("Charter") (2)-a challenge dismissed by the British Columbia Supreme Court ("BCSC"), British Columbia Court of Appeal ("BCCA"), and the Supreme Court of Canada ("SCC"). (3)

This paper will contend that the SCC adhered to a view of s. 2(a) that is too narrow and that ignores uniquely Indigenous spiritual practices. In particular, the SCC did not consider the role that the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP") should have had in this case. Further, the SCC acted contrary to the dominant global trend of recognizing and fortifying Indigenous rights and, specifically, rights related to sacred places.

Before commencing the investigation that is this paper's focus, and in order that the scope of this academic endeavour can be fully appreciated, there are two preliminary considerations that require attention: (i) the distinction between the Charter and s. 35 of Canada's Constitution; and (ii) an accounting of Canada's path to accepting the UNDRIP.

  1. THE DISTINCTION BETWEEN THE CHARTER AND S. 35

    Constitutional protection of rights inhering to Canada's Indigenous peoples is primarily accomplished through two distinct mechanisms: (i) the Charter, which protects the rights of Indigenous individuals as well as the rights of all other individuals in Canada; and (ii) s. 35 of the Constitution Act, 1982 which expressly recognizes and affirms the Aboriginal and treaty rights of Canada's Indigenous peoples. (4) As an intervener in Ktunaxa Nation, the Attorney General of Canada described this dichotomy focusing on the different "nature and scope of the protections" guaranteed by the Charter and s. 35 acknowledging that the Charter protects "every person's or community's" rights whereas s. 35

    recognizes and affirms a wide spectrum of existing Aboriginal rights, including cultural and spiritual practices, customs, and traditions integral to the distinctive Aboriginal society and having continuity with those that existed prior to contact with European society. (5) There are several differences between these rights-protection mechanisms including that (i) the implication, in a government act, of rights protected by the Charter does not generate a duty on the government to consult with affected Indigenous groups whereas such a duty is generated by the implication of s. 35 rights; (6) and (ii) the express limitation clause-s. 1-that applies to the Charter does not apply to s. 35. (7)

    While the complete picture of constitutional Indigenous rights protection in Canada entails scrutinizing the relationship between and application of both the Charter and s. 35, I intend to devote the discussion that follows to the role of the Charter. This focus is not accidental. There are two reasons, the first general and the second specific, for this decision. First, Indigenous rights advocacy has been increasingly framed in human rights terms-the language of the Charter as opposed to s. 35-since 1982. (8) Second, the Ktunaxa Nation decision, along with developments in international law (9) and domestic policy, (10) has raised interesting questions about the role of the Charter in Indigenous rights protection that demand consideration. Nothing in this paper is intended to suggest any limitation on the protections granted by s. 35.

  2. CANADA'S CUMBERSOME PATH TO ACCEPTING UNDRIP

    While the UNDRIP will be discussed later in this paper, an understanding of Canada's path to accepting it is integral to a fulsome discussion of its role in Canada's Indigenous rights story.

    The United Nations General Assembly ("UNGA") adopted the UNDRIP in 2007 with 144 states in favour, 11 states abstaining, and 4 states opposing-the United States, Australia, New Zealand, and Canada. (11) In a particularly poignant critique of Canada's opposition, Paul Joffe wrote that

    the Canadian government's opposition to the [UNDRIP] is based on ideological bias rather than on a legitimate, legal rationale. The Canadian government has consistently engaged in exaggerated, absolutist interpretations of the [UNDRIP] which have generated confusion and opposition both at home and abroad. It has repeatedly violated the rule of law in Canada and internationally, misled the Canadian public, and undermined the human rights of Indigenous peoples. Such conduct fails to uphold the honour of the Crown and is inconsistent with the constitutional objective of reconciliation with Indigenous peoples. (12) In 2010, Canada announced some qualified support for the UNDRIP. (13) In its official announcement, the government made clear that its concerns persisted and described the UNDRIP as an "aspirational document" and a "non-legally binding document". (14) This announcement represented a hesitant and small step in the right direction. Concern over this tentative endorsement has been raised several times in Parliament through private members' bills seeking to ensure that domestic laws accord with the UNDRIP. (15) In introducing one such bill in 2015, Bill C-641, Romeo Saganash, a Cree Member of Parliament, articulated his concern stating:

    If the government truly believes that this document is aspirational, is it endorsing it with no intention to implement it? That is the question. To deliberately do that would be a terrible example of the government acting in bad faith, which is saying a lot, given Canada's history with respect to treaties and the rights of indigenous people. (16) So far, each of these bills has been defeated. Mr. Saganash introduced a new such bill, Bill C-262, in 2016. At the time of writing this paper, Bill C-262 was passed by the House of Commons and has passed first reading in the Senate.

    It was not until 2016 that Canada fully endorsed the UNDRIP. (17) However, the speech delivered by then-Minister of Indigenous and Northern Affairs, the Honourable Carolyn Bennett, still raises, in my view, a point of concern. Namely, the Minister focused on s. 35, stating that "by adopting the [UNDRIP], [Canada is] excited that we are breathing life into s. 35 and recognizing it now as a full box of rights for Indigenous peoples". (18) While the Minister's remarks may indeed be true, they fail to recognize any relationship between the Charter and the UNDRIP, between Canada's human rights-protection mechanism and the rights of Indigenous peoples. This focus on s. 35 is confusing as it fails to recognize the method by which other states implement the UNDRIP in the absence of express constitutional protection for "Aboriginal and treaty rights" akin to s. 35. In short, while making a prima facie unqualified acceptance of the UNDRIP, the words of the Minister do not reflect an intention to implement it as a catalyst for the protection of Indigenous rights as human rights.

    II INVESTIGATION

    Having set out the reach and focus of this paper, our investigation into the proper scope of constitutionally protected religious freedom, and the SCC's interpretation of it in Ktunaxa Nation can begin.

    The three Ktunaxa Nation courts relied on three different limited formulations of s. 2(a) to preclude the protection claimed by the Ktunaxa Peoples. The BCSC justice stated that

    The Supreme Court of Canada jurisprudence to date regarding s. 2(a) largely deals with situations where a law either compels an individual to act in a manner contrary to his or her religious beliefs or creates burdens on an individual's ability to act in accordance with those beliefs. (19) The BCCA recognized that this approach was too narrow. (20) Instead, s. 2(a) was thought to protect "the vitality of a religious community as a whole." (21) The BCCA still disallowed the Ktunaxa claim, however, concluding that "the Ktunaxa cannot, in the name of their own religious...

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