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.

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