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- Supreme Court Decision Provides Clarity re: Aboriginal Consent on Major Projects
Published On: Tuesday, 07 November 2017
Supreme Court Decision Provides Clarity re: Aboriginal Consent on Major Projects
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CANADA - On November 2, the Supreme Court of Canada released its Ktunaxa vs. British Columbia decision denying the Ktunaxa Nation’s appeal of two BC court decisions.
We sought—and obtained—intervener status in this case because of the implications it could have for future economic development projects throughout Canada.
There are Aboriginal spiritual rights claims throughout Canada that may be affected by economic development projects and we advocated an approach that appropriately balances the rights of all affected parties—including businesses and their investors—when such projects are assessed and regulated.
In 2012, BC’s Minister of Forest, Lands and Natural Resource Operations approved a Master Development Agreement (MDA) granting Glacier Resorts permission to build a ski resort on Crown land in the Jumbo Valley.
The MDA followed two decades of negotiations and regulatory reviews/approvals which included significant consultation with potentially affected First Nations communities, including the Ktunaxa Nation Council. It was also the last in a series of approvals issued by the BC government for this project, which were not challenged by the Ktunaxa Council.
After the granting of the MDA, the Ktunaxa Council applied for a judicial review of the decision alleging that their Charter right to freedom of religion had been violated and the Crown had breached its duty to consult. The BC Supreme Court and the BC Court of Appeal dismissed the case and the Ktunaxa turned to the Supreme Court of Canada.
The Ktunaxa Council asserted that the proposed resort lies at the heart of an area of spiritual significance to them. In particular, they stated that the Jumbo Valley is home to the Grizzly Bear Spirit which provides them spiritual guidance, although the rituals and ceremonies involving the Grizzly Bear Spirit are mostly performed elsewhere. The Ktunaxa Council claimed that the proposed resort would violate their freedom of religion by causing the Grizzly Bear Spirit to leave.
Highlights of the decision:
The Supreme Court agreed with our position that the Charter of Rights and Freedoms was not engaged in this case.
The Court also determined that the duty to consult was met in this case, noting that Section 35 of the Constitution guarantees Aboriginal peoples a process but it does not guarantee them a particular result. The Court stated that Aboriginal consent is only required for “proven claims and only then in certain cases”, such as Aboriginal title, and that the duty to consult does not provide a veto over land development.
What this means for Canadian business:
This decision is important for Canadian business as it provides further clarity regarding the circumstances under which Aboriginal peoples’ consent must be obtained and/or have the power of veto. It also clarifies when Aboriginal spiritual rights claims may engage the Charter’s protections of freedom of religion in addition to the duty to consult.
It also reasserts the need to balance the rights of all involved in a particular development including businesses and their investors.
We believe that our intervention in this case has made a contribution to achieving this additional clarity.