Making Sense of Ktunaxa Nation: The Imperative of an Alternative Approach to Land and Development

Daniel Powell-Monture is a first-year law student at McGill University. He holds a Bachelor of Arts from the University of Toronto and a master’s degree in Globalization Studies from McMaster University. He is interested in the constitutional politics of indigenous peoples and legal theory.

In Ktunaxa Nation v. British Columbia, the Supreme Court of Canada rejected a claim that Ktunaxa Nation’s constitutionally protected freedom of religion right would be breached by constructing a ski-resort on its traditional territory. Essential to the decision’s rationale was consideration of how far the protected right of one community can extend to impose restrictions on acts of the government or other parties.

In popular commentary, the decision’s legal rationale was too easily mistaken for a comment on the place of indigenous peoples in Canadian society. Ktunaxa Nation provoked exchange so swift and pointed that commentary about the legal decision in mass-media was replaced by a dispute over the cultural politics of recognition at the hands of a settler colonial state. Not more than a week after its publication, the decision had struck a chord in the Canadian media. And for a nation grappling with how to recognize and reconcile with Indigenous Nations, the chord resonated all too familiarly. If the flurry of media responses to the Ktunaxa Nation Supreme Court decision are to be accepted at face value, then either the Supreme Court has upheld the principles of settler colonial domination[1] or they have withstood the temptation to extend accommodation beyond reasonable limits.[2]

Jumbo Valley, British Colombia has been the traditional territory of the Ktunaxa and Shuswas people for thousands of years. Courtesy of Vice Media.

An editorial opinion by the Globe and Mail commended the outcome of the decision as proof of the Court’s conservative restraint.  Rather than succumb to the progressive politics of recognition, the Supreme Court justices had avoided the temptation of putting political interests above a restrained conservative analysis of the law. Beneath the shroud of regalia, Supreme Court justices are merely “human beings like the rest of us,” they proclaimed. No more than paltry humanoids tempted to make good on reconciliation. Like any other Canadian, justices have no interest in “upsetting their neighbours” by pursuing unpopular policy interventions.[3]

Abstracted from its legal foundation, to some, this logic may appear sound. Confronted with a political choice, not a legal one, the Court had rendered an appropriate and controlled decision. No judicial activism here. For the editorial team at the Globe, the justices had taken a valiant stand against the demands of Ktunaxa Nation.

Sarah Berman of Vice proffered a critique that could not have been more at odds with the Globe and Mail’s contrived commentary. The decision, she argued, was evidence that indigenous lands were not sacred enough to warrant a political response. The question of whether rights had been infringed was incidental to the more fundamental injustice of a colonial structure between indigenous peoples and the Canadian state. Presumptive in her analysis was that rights, as she understood them, could only have been infringed. Absent from her analysis was discussion of the complex process through which the Supreme Court must negotiate the infringement of a religious right.

Divided response to Ktunaxa Nation is perhaps unsurprising given that the case turns on a complex mixture of political and religious questions. These two topics are after all never supposed to be mentioned in gentile circles. The trouble is that the place of indigenous lifeways in Canadian society turns on questions that are inherently political and religious in nature. The integration of indigenous legal traditions in the framework of Canadian law is inherently political. The challenge of whether and how to accommodate and include indigenous traditions into Canadian civil society turns on questions of sovereignty, colonialism, and the protection of cultural rights.[4] Moreover, as indigenous claims and legal traditions conflict with the interests of federal policy to allocate Crown land, the spiritual and religious content of indigenous worldviews are also tested by the secularized status of religion as a discrete worldview.

At the expense of a sustained engagement about the possible avenues for a new model of sustainable development, Ktunaxa Nation has been reduced to a thermostat of the treatment of indigenous peoples. For those within the legal profession, the case’s bastardization in public discourse should elicit concern. Bonds of understanding between courts and society are not well.

Diversion to the details of the case offers a different analysis. The Court addressed two discrete causes to action. While each was pursued individually as a mechanism to invalidate approval of Glacier Resort’s development, invocation of a Charter claim to freedom of religion was the one that sought the most significant interpretative value from the Court. First, the Court addressed whether the construction of a permanent structure in the Jumbo Valley infringed the fundamental right of religious freedom guaranteed by the Charter. Ktunaxa Nation argued that the construction of a permanent structure in the Glacier Valley would cause irremediable harm to their religious beliefs and that the harm was significant enough to give them a cause of action for constitutional protection of religious freedom under s. 2(a) of the Charter of Rights and Freedoms. In turn, the majority opinion ruled that freedom of religion protects the “freedom to [hold beliefs] and to manifest them in worship and practice or by teaching and dissemination”, but not the “object of beliefs” [5]. Hence, Ktunaxa Nation’s religious rights were not infringed.

Second, the Court addressed the claim that the duty to consult process had been insufficient. In their submission to the Court, Ktunaxa Nation claimed that British Columbia Ministry had breached its duty of consultation and accommodation. A diversion is in order. Over a 20 years period, Glacier Resorts and Ktunaxa Nation negotiated the construction of a ski-resort. When negotiations soured, the British Columbia Ministry of Forests, Lands and Natural Resource Operations intervened. Steps were taken, following the duty to consult process, to accommodate the spiritual concerns of the Ktunaxa Nation. Although it had seemed to the Ministry that progress had been made to accommodate some of its spiritual claims, Ktunaxa Nation came to take a different approach. It declared rights arising from a “pre-existing sovereignty” allowed it to effectively veto any development in certain parts of Jumbo Valley, and terminated negotiations. It claimed the sacred importance of the site had not been considered.

Despite Ktunaxa Nation’s new approach to the development, the Ministry approved an agreement to grant Glacier Resorts the right to proceed. In its decision, the Ministry demonstrated that its commitment to the duty to consult process was procedural. Negotiations were a necessary component to approval of the project, but the substance of the outcome of negotiations was irrelevant so long as a good faith attempt was made to accommodate Ktunaxa Nation. The Supreme Court agreed.

The British Columbia Ministry of the Environment acted within its mandate. However, their vision of accommodation, the kind bestowed by the jurisprudential extension of s. 35 aboriginal rights, was too precise and limited to accommodate a genuine reconciliation with the indigenous peoples of the Jumbo Valley. The Ministry was offered the task of seeking accommodation and consultation within a legislative agenda that does not adequately address the mixed and varied relations of indigenous peoples with property. Ktunaxa Nation rejected the substance of an accommodative approach for reasons that were core to their religious beliefs. No permanent structure could avoid irremediable spiritual damage. Having completed its procedure of making good on aboriginal rights, the Ministry was left with one avenue to protect the interests of Glacier Resorts and the integrity of its duty to consult process.

Ktunaxa Nation can all too easily read as an uncomfortable development to emerge in what has become over the past several decades a storied body of jurisprudence aimed at the reconciliation of Indigenous peoples into Canadian society. Though it shares similar traits with the substantive issues of past decisions, Ktunaxa Nation disrupts the progressive tendencies of Indigenous-Crown reconciliation. The decision did not establish a mechanism favourable to the protection of Indigenous Nations. To the contrary, the case set forth limits on the Court’s willingness to balance indigenous claims with Crown interests in the name of a reconciliatory approach to indigenous peoples.

To be fair, the duty to consult and accommodation process was never intended as a mechanism to remake Canadian society. The process, as set forth in Haida Nation, was recognized as an interim measure of protection for indigenous nations that had yet to establish title rights. There are limits, profound limits, to the constitutional protection of indigenous peoples.

Stuck within the frame constructed by the Court, it has become too easy, even perfunctory, to imagine a program of aboriginal rights that is made more robust through more robust interpretation. Debates over aboriginal claims are too easily framed as problems of constitutional interpretation. I firmly believe that the attention to law and legal instruments is misguided, even dangerous. In place of a legalistic analysis what is needed is that the power of the Supreme Court be examined not merely as the product of judicial intervention but instead as reference to the critical weakness of public policy. Ktunaxa Nation reflects that frictions of clashing values over the substance of reconciliation are grander than mere disagreement about constitutional principles and cultural accommodation in liberal society. The case reveals the limits of the duty to consult and accommodate process to reconcile with indigenous worldviews.

Reconciliation, if is to have broad purchase, must be accompanied by a political change more substantial than the slow and uneven development of Canadian Supreme Court jurisprudence. Legislative changes are required. New models through which the Crown allocates its property interests that recognize the presence of indigenous peoples. It requires that the state’s accountability to the public is measured through more than a simple calculus of the economic benefits of Crown land disposition to consideration of how the disposition of Crown lands is intricately connected to a broader calculus of social value.

Frustrating though it may appear to some, Ktunaxa Nation warrants a different response, one that can serve as a clarion call to think carefully and cautiously about the legitimacy of powers granted to the Supreme Court. The decision also demands rethinking the core elements of the duty to consult and the polices bestowed to provinces to dispose of land for “public benefit.”

Since the project must still pass environmental review, it remains possible that the Ktunaxa Nation can achieve its own justice in the matter. Moreover, the justice claims of indigenous peoples more broadly are on a different footing. In the years since the Truth and Reconciliation released its recommendations, there are signs that relations with indigenous peoples have improved. Even if a change in words has not been met with actions, the discourse about indigenous peoples in Canadian society has changed remarkably. The seeds of a different relationship have been planted.

Hope can turn to promise but only with a different conversation about property, development, and indigenous peoples. The problems posed by Ktunaxa Nation signal the sort of questions that civil society needs to be asking. Whatever its future, the project’s political struggle holds the potential to inspire a conversation more important than bickering over whether the Supreme Court justices are activist politicians in robes.

The Court’s docket will doubtless address similar appeals of development in its future. Insofar as the Supreme Court of Canada remains engaged in a purposeful articulation of s. 35 aboriginal rights, the Court, elite and distanced, will be seen by many as an activist organization. For some, its activism will be welcome. For others, its activism will not be. Either way, aspiring to the Courts can only be one strategy for change. Ktunaxa Nation should teach us that a different strategy, outside of the regularities of the law, is due. The aspiration for a new paradigm of development, one which considers reconciliation with indigenous peoples as an essential component of a more humane form of economic program, requires a tectonic shift.

I would hope that this conversation can be had outside of the discursive framing of state recognized aboriginal rights. But how can narratives shift? How can these relations be reimagined? You tell me.

I ask: in the name of Ktunaxa Nation, what is your reconciliation resolution?

 

Sources;

[1] This position can be found notably in Sarah Berman, “Indigenous Lands not Sacred Enough to Block BC Ski Resort, Supreme Court Rules” Vice Media (2 November 2017), online <www.vice.com>.

[2] Editorial, “In a ruling on Indigenous Rights, the Supreme Court gets religion” The Globe and Mail (6 November 2017), online <www.theglobeandmail.com>

[3] Ibid.

[4] For the effect of colonialism on indigenous inclusion in Canadian constitutionalism, see: James (Sa’ke’j) Youngblood Henderson, “Incomprehensible Canada” in Jennifer Henderson & Pauline Wakeham, Reconciling Canada: Critical Perspectives on the Culture of Redress (Toronto: University of Toronto Press, 2013), 115. For an account of reconciling Crown and indigenous sovereignty, see: John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37:3 Osgoode Hall L J 537.  For an account of the demands on cultural rights on the constitution, see: James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995).

[5] Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 71.

Finding a Place for Climate Migrants

Lauren Weaver is a first-year law student at McGill. She graduated Summa cum Laude with a B.A. in French and International Studies from the University of Oklahoma in 2012 and received her M.A. in French Studies from New York University in 2015. Lauren previously worked as an immigration paralegal at Fragomen, Del Rey, Bernsen & Loewy, LLP. She is a Student Advocate with the McGill chapter of the International Refugee Assistance Project and serves as the External Chair for the Canadian Association of Refugee Lawyers at McGill.

As the effects of global climate change bring extreme weather events, melting ice caps, and rising tides, experts have begun to examine these environmental shifts as risk factors for human displacement and forced migration. Professor Jennifer Leaning asserted that climate issues likely played a role in the current European refugee crisis during her keynote speech at Harvard University’s September 2017 symposium, “Climate Change, Migration and Health.” Following an extended drought in northern Syria that ravaged the agricultural industry, a million people were forced to migrate internally, contributing to the unrest that would eventually become a civil war. However, there are other risks associated with climate change that could potentially lead to forced migration, such as rising sea levels that put entire island nations like Kiribati at risk. Unfortunately, the current framework for status determination in refugee and asylum law was not designed to address these types of migratory situations and leaves entire populations without options for resettlement abroad.

Initially drafted to protect European refugees following World War II, the 1951 Refugee Convention as amended by the 1967 Protocol defines a refugee as:

“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Somali refugee camp in Eritrea

This definition makes sense within the postwar context and the aftermath of the Holocaust, which left millions of refugees who had been targeted for religious, ethnonational, and political reasons. The current state of migratory issues, however, differs drastically from that of 1951. While some displaced peoples—such as the Rohingya of Myanmar—are still fleeing persecution based on their status as an oppressed minority, millions more are displaced both internally and externally by civil war, political and economic instability, and most recently by the effects of climate change.

Among the largest risk factors for climate-driven migration are flooding, extreme weather events, and desertification. In the Sahel belt of sub-Saharan Africa, a 90% shrinkage of Lake Chad since the 1960s has contributed to the displacement of 2.5 million people in the region. These changes are exacerbated by the area’s extreme poverty and could lead to increased political instability and conflict over resources. Meanwhile, the government of Fiji has published a list of 60 villages in need of relocation as a result of the rising waters that are slowly eating away at the beaches of the island nation. While displaced peoples in larger countries may be able to relocate internally to escape the most devastating effects of climate change, many more will be forced to leave their home countries altogether for lack of adequate shelter and resources. These people would be ineligible for refugee status, benefits, and resettlement under the current framework administered by the United Nations High Commissioner for Refugees (UNHCR).

Floods in Sahrawi refugee camps in southwest Algeria

The lack of protection under current international refugee and asylum law leaves few options for climate change migrants. Although some developed nations may introduce temporary immigration programs following particularly devastating natural disasters, these will not address the colossal scale of eventual climate migration needs. Migrants may also find themselves uprooted again and forced to return to their home countries, as is the case of the 50,000 Haitian and 200,000 Salvadoran immigrants displaced by earthquakes whose Temporary Protective Status in the United States is set to expire in 2019. In the wake of such migratory crises, experts and activist groups have argued that the 1951 Refugee Convention does not address the full breadth of contemporary displaced migrant populations, and have called for the recognition of climate change as a driver of migration by the United Nations.

Contemporary migration problems, including those driven by climate change, will require a re-examination of how we determine the circumstances under which a person has the right to leave their country of origin and establish a life abroad. Whether the solution is to redefine “refugee” or to set up an entirely new system for climate migrants is unclear. What is clear, however, is that inaction on the part of the international community, particularly industrialized nations, is unacceptable. As the primary contributors to climate change, the industrialized nations have an ethical responsibility to mitigate climate change and its consequences for the developing world. Opening our borders and communities to those who have lost and will lose their homes to climate change is not a kindness or a favor; it is a duty.

Not the Villain: China’s Role in Our Green Future

Zach Morgenstern is a second year law student at McGill. He graduated with an Hon. BSc. in Peace, Conflict and Justice Studies and Ecology & Evolutionary Biology from the University of Toronto. His extra-curricular explorations have led him to participate in, and occasionally explore, environmental issues via campus journalism, community radio, and the Toronto and Montréal folk music scenes.

Tackling global climate change can feel like a hopeless task. One reason for this is the fear that as countries in the Global South pursue First World living conditions, they will inevitably emit large quantities of greenhouse gases. China, as the world’s leading CO2 emitter,[1] (though, far and away, not its leading emitter per capita) and a rising political superpower, particularly factors into this pessimistic fantasy. However, this caricature of China as a polluting, rapid-industrializer, is, at the very least, a gross oversimplification. Chinese President Xi Jinping, after all, has established a longstanding rhetorical commitment to building a nation of “clear waters and green mountains.”[2]

In 2005, China passed the Renewable Energy Law, which amongst other things, requires that energy providers incorporate all possible renewable energy sources into their grids.[3] Since the passage of the act, China has seen notable development in its renewable energy industries, particularly wind, making China the world’s leading producer of wind power. China aspires to produce 20% of its power from renewable sources by 2020.[4] China also has plans to reduce its carbon intensity (emissions per unit of GDP) by 40-45% below 2005 levels by 2020. While this target sounds ambitious, the country had previously set a goal of reducing its carbon intensity by 20% relative to 2005 levels by 2010[5] and it came close to achieving it, reaching a 19.1% reduction.[6]

Chinese policy, however, is not the only basis to question pessimistic visions about the environmental potential of the Global South.  Indeed, the assumption that developing economies are so single-minded that they will industrialize without any concern for climate change ignores the salient conditions that exist in countries like China. According to a Pew poll, Chinese citizens widely view pollution as a matter of national concern: the only issue noted by a greater portion of respondents was corruption.[7] One consequence of this pollution is water contamination. This is a particularly important problem for China given that it has 20% of the world’s population, but only 5-7% of the world’s fresh water supply.[8] While it is apparent that strong evidence about the risks of climate change in the abstract is insufficient to drive governments to take drastic action, mass public exposure to and awareness of the consequences of pollution (the presence of which is often connected with climate change) can pressure governments to pursue meaningful reforms.

Nationalism is another factor that seems to be shaping the Chinese green transition. Former Chinese Premier Wen Jiabao argues that economic crises can be an opportunity for countries to adapt their economies to changing times.[9] He noted that many countries seemed to be ‘going green’ and argued that it would be a shame for China to fall behind on this trend. Nationalistic motivations are not just evidenced in Chinese state rhetoric, but also in its approach to promoting green energy: providing substantial subsidies to domestic companies, requiring that industries (e.g. wind) primarily be populated by domestic companies, etc.[10] China’s nationalist approach could alternatively be described as a socialist one. It is not characterized by hardline, chauvinistic patriotism so much as an approach to economic development that holistically considers the wellbeing of the country. This is illustrated by the fact that China’s 5-year plans have included calls for reductions in growth targets, with Wen explaining that “China must stop sacrificing the environment to wasteful energy use and unsustainable development.”[11] As Professor Zhang Yongsheng argues, China’s status as a developing economy does not necessarily mean that it is just starting on the Western path of emission-heavy development:[12] rather, China and its nationalist and socialist leaders have an opportunity to reimagine development as a green process.

It should be added that Chinese leadership has also clearly indicated its understanding that ecological protection and economic development are not necessarily opposing ends. Xi explains “We will promote green development to achieve better economic performance. I have said for many times that green mountains and clear water are as good as mountains of gold and silver. To protect the environment is to protect productivity.” Again, such perspective is sparked by the salience of pollution’s effects in China. In 2000, 470 000 premature deaths were tied to pollution: it is hard to grow your economy when you are losing your population.[13]

China still has a long way to go before it puts a major dent in the process of global climate change. Nonetheless, if world leaders are to collectively address climate change, it is important that they have faith in the ability of their colleagues, including those who lead rising economies, to contribute. China has a bad environmental reputation, and some of that is deserved, but credit should still be given where it is due. We live in a bleak era. The so-called leader of the free world, President Trump’s United States has withdrawn from the Paris agreement. We now must count on China and President Xi, who has vowed to do the opposite.

[1] “Each Country’s Share of CO2 Emissions” (Nov 20 2017) Union of Concerned Scienists, online: <https://www.ucsusa.org/global-warming/science-and-impacts/science/each-countrys-share-of-co2.html#!>.

[2] Sam Geall, “Clear Water and Green Mountains: Will Xi Jinping Take the Lead on Climate Change?” (Nov 16 2017) Lowy Institute, online: <https://www.lowyinstitute.org/publications/clear-waters-and-green-mountains-will-xi-jinping-take-lead-climate-change>

[3] Barbara Fimore, “China Renews Its Commitment to Renewable Energy” (Feb 1 2010) Natural Resources Defence Council, online: <https://www.nrdc.org/experts/barbara-finamore/china-renews-its-commitment-renewable-energy>.

[4] Andrew B. Kennedy, “China’s Search for Renewable Energy: Pragmatic Techno-Nationalism” (2013) 53:5 Asian Surv p 909 at 909.

[5] Justin V. Remains & Junfeng Zhang, “Environmental Lessons from China: Finding Promising Policies in Unlikely Places” (2011) 119:7 p 893 at 894.

[6] Jane Qiu, “China Announces Energy-Saving Plans”  (Mar 14 2011), online: <http://www.nature.com/news/2011/110304/full/news.2011.137.html>

[7] Remains & Zhang at 893.

[8] Geall.

[9] Kennedy at 916.

[10] Ibid at 920.

[11] Qiu

[12] Yongsheng Zhang, “Can China Achieve Green Growth?” in Ross Garnet, Cai Fang, and Ligang Song eds. “A New Model for Growth and Development” (Action: Australia National University Press, 2013) 267 at 274.

[13] Remains & Zhang at 903.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.