Recontextualizing Ktunaxa Nation v. British Columbia: Crown Land, History and Indigenous Religious Freedom

(2019) 88 S.C.L.R. (2d) 205-229

26 Pages Posted: 7 Feb 2019

See all articles by Howard Kislowicz

Howard Kislowicz

University of Calgary - Faculty of Law

Senwung Luk

Olthuis KleerTownshend, LLP

Date Written: February 1, 2019

Abstract

In Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), the Supreme Court of Canada addressed, for the first time, a religious freedom claim under the Charter based on Indigenous spiritual beliefs and practices. The Indigenous Ktunaxa Nation had opposed the development of a ski resort in the area of Qat’muk, also called Upper Jumbo Valley. They said Qat’muk is sacred because of its association with the Grizzly Bear Spirit and, should the proposed development be carried out, the Grizzly Bear Spirit would leave, destroying Qat’muk’s spiritual significance. The Court held that the Charter right of religious does not protect the “spiritual focal point of worship.” Because the Ktunaxa Nation was seeking to protect the Grizzly Bear Spirit itself, the Court reasoned, its claim fell outside the Charter’s ambit.

We argue that this development could yield results inconsistent with the purposes of protecting religious freedom and is likely to have disproportionately onerous effects on Indigenous spiritual practices. We highlight these effects by presenting some of the historical context of land grants made by colonial powers to dominant religious groups allied with the settler state. To the extent that Ktunaxa suggests that religious groups should rely on property rights rather than religious freedom, the approach privileges dominant groups over non-Indigenous religious minorities because of historical grants made by the state, which also dispossessed Indigenous groups. We suggest that a more appropriate approach to reconciling religious freedom interests with the property interests of the Crown or third parties is to be found in the existing case law on the interaction of religious freedom and zoning regulations. Finally, we suggest that land selection processes under modern treaty negotiations present yet another way to avoid conflict.

Suggested Citation

Kislowicz, Howard and Luk, Senwung, Recontextualizing Ktunaxa Nation v. British Columbia: Crown Land, History and Indigenous Religious Freedom (February 1, 2019). (2019) 88 S.C.L.R. (2d) 205-229. Available at SSRN: https://ssrn.com/abstract=3327501

Howard Kislowicz (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

Senwung Luk

Olthuis KleerTownshend, LLP ( email )

250 University Ave, 8th Fl
Toronto, OH M5H 3E5
Canada

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