Howard Kislowicz and Senwung Luk have posted "Recontextualizing Ktunaxa Nation v. British Columbia: Crown Land, History and Indigenous Religious Freedom" on SSRN. The article has been published in the Supreme Court Law Review.
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