Case Comment: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII)November 2, 2017
On November 2, 2017 the Supreme Court of Canada released its decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII), a 92 page decision finding that a First Nation could not establish its asserted rights in judicial review of an administrative decision, that their religious beliefs that development would drive away a spirit from the Qat’muk lands was not infringed (or in the minority’s view the right was infringed but the infringement was limited as much as reasonably possible), and that the consultation was adequate and accommodation did not require the proposed project be rejected in its entirety. While the Supreme Court of Canada recently held in the Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (CanLII) and Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40 (CanLII) that administrative decision-makers with statutory powers to carry out consultation and accommodation can both consult and consider the adequacy of consultations, and that the Crown can rely on consultations performed by administrative decision-makers or provide further processes, this decision clearly sets limits for those processes as it relates to considering unproven Aboriginal claims. The decision gives administrative decision-makers and courts sitting in judicial review of those decisions additional guidance on handling unproven claims. It also gives clear guidance to Aboriginal people with unproven claims that unless the decision-maker is given a statutory power to do so, asserted but unproven rights will not be recognized through administrative processes or judicial reviews of administrative decisions, and directs that claims to Aboriginal rights must be established at trial. Such trials are long, complicated processes requiring substantial time, money, and resources of both the parties and the judicial system.
In this case, the Minister and the Ktunaxa engaged in negotiations through the consultation process for decades. The Ktunaxa believed that development of the Qat’muk area would drive away a Grizzly Bear Spirit, and took the final position that no development should occur. The majority found the consultation process had been brought to an end. The majority of the court did not consider it an infringement of a religious right which only protects a person’s ability to hold a belief and manifest them, but not to protect a spirit they believe in or the subjective spiritual meaning they derive from it. The minority decision found that there was a religious right being infringed, but that the Minister’s decision was not unreasonable and interfered with the right as little as possible.
The majority was concerned that the rights were being asserted in an administrative process and judicial review, which is generally a summary proceeding with a limited record and narrowly defined issues, and noted this posed certain problems and limitations at paragraphs 84 – 88:
 The Ktunaxa’s petition asked the chambers judge to issue a declaration that Qat’muk is sacred to the Ktunaxa and that permanent construction is banned from that site. In effect, they ask the courts, in the guise of judicial review of an administrative decision, to pronounce on the validity of their claim to a sacred site and associated spiritual practices. This declaration cannot be made by a court sitting in judicial review of an administrative decision to approve a development. In judicial proceedings, such a declaration can only be made after a trial of the issue and with the benefit of pleadings, discovery, evidence, and submissions. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation. To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes. Aboriginal rights claims require that proper evidence be marshalled to meet specific legal tests in the context of a trial: R. v. Van der Peet, 1996 CanLII 216 (SCC),  2 S.C.R. 507; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC),  3 S.C.R. 1010, at paras. 109 and 143; Mitchell v. M.N.R., 2001 SCC 33 (CanLII),  1 S.C.R. 911, at para. 26; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII),  2 S.C.R 257, at para. 26.
 Without specifically delegated authority, administrative decision makers cannot themselves pronounce upon the existence or scope of Aboriginal rights, although they may be called upon to assess the prima facie strength of unproven Aboriginal claims and the adverse impact of proposed government actions on those claims in order to determine the depth of consultation required. Indeed, in this case, the duty to consult arises regarding rights that remain unproven: Haida Nation, at para. 37.
The majority briefly reviewed the other legal tools available to the Ktunaxa outside the administrative law process:
 The Ktunaxa reply that they must have relief now, for if development proceeds Grizzly Bear Spirit will flee Qat’muk long before they are able to prove their claim or establish it under the B.C. treaty process. We are not insensible to this point. But the solution is not for courts to make far-reaching constitutional declarations in the course of judicial review proceedings incidental to, and ill-equipped to determine, Aboriginal rights and title claims. Injunctive relief to delay the project may be available. Otherwise, the best that can be achieved in the uncertain interim while claims are resolved is to follow a fair and respectful process and work in good faith toward reconciliation. Claims should be identified early in the process and defined as clearly as possible. In most cases, this will lead to agreement and reconciliation. Where it does not, mitigating potential adverse impacts on the asserted right ultimately requires resolving questions about the existence and scope of unsettled claims as expeditiously as possible. For the Ktunaxa, this may seem unsatisfactory, indeed tragic. But in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket.
Accommodation requires Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns (see e.g. Taku River Tlingit First Nation v. B.C. (Project Assessment Director),  3. S.C.R. 550, 2004 SCC 74). However it does not mean Aboriginal peoples have a “veto” on project proposals (see Haida Nation v. B.C. (Minister of Forests),  3 S.C.R. 511, 2004 SCC 73; Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 48). The court noted that consent is required only for proven claims, and “even then only in certain cases” (citing Haida, supra). The majority found that on its face, the record supported the reasonableness of the Minister’s conclusion that the s. 35 obligation of consultation and accommodation had been met. It explained that the duty to consult and accommodate is a right to a process, not a right to a particular outcome, and that sometimes the accommodation sought “may not be possible”. The majority felt that granting the Ktunaxa a power to “veto” the project would be granting it a “significant property interest in Qat’muk – namely a power to exclude others from constructing permanent structures on over fifty square kilometres of public land”.
While the decision is consistent with the jurisprudence holding that the right to consultation and accommodation are not a “veto” over development, I anticipate the majority’s decision will be criticised as an interpretation of Aboriginal culture, traditions and spiritual beliefs through a cultural lens that does not recognize the right to freedom of conscience and religion under s. 2(a) of the Charter as capable of being connected to the land considered sacred by the Ktunaxa, and as potentially being at odds with the spirit of reconciliation and article 25 of the United Nations Declaration on the Rights of Indigenous Peoples (which recognizes the right “to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard”). Because Aboriginal rights in Canada have been increasingly dealt with by administrative decision-makers such as impact assessment boards and panels, this decision may streamline those processes to a degree but can also be expected to lead to increased litigation to prove asserted claims in court. Aboriginal peoples with unproven claims may also attempt to enjoin administrative decision-makers from carrying out reviews pending a resolution of their claims. Unless alternative processes to prove Aboriginal claims are used, increases in judicial appointments, funding and resources to address such claims in the “expeditious” manner suggested by the majority will be necessary.
Shane R. Hopkins-Utter, B.A. (Hon), M.A., J.D.*
*Practicing as the Shane R. Hopkins-Utter Law Corporation
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