Yesterday, the Supreme Court of Canada reaffirmed that government actors have a duty to specifically consider religious freedom concerns when raised by claimants in its Ktunaxa Nation v. British Columbia decision. This historic case – the first Indigenous religious freedom claim to be heard by the Supreme Court - raised questions about the scope of religious freedom, and the means by which religious communities can practise and manifest their faith. Christian Legal Fellowship (CLF) and The Evangelical Fellowship of Canada (EFC) jointly intervened in the case.
The litigation arose from a proposed ski resort on land that is sacred to the Ktunaxa people. The Ktunaxa Nation opposed the development on the basis that it would desecrate the sacred site and would interfere with a variety of their spiritual practices.
The British Columbia Minister of Forests, Lands and Natural Resources approved the development but did not specifically address how the decision would impact the Ktunaxa Nation's section 2(a) Charter right to freedom of religion.
The Supreme Court upheld the Minister’s ultimate decision; however, the Court was divided 7-2 on some of their underlying reasons.
Supreme Court split on the scope of religious freedom
The majority confirmed that the Minister should have addressed the section 2(a) claim [para 60]. However, they found that the Minister’s failure to do so was immaterial in this case, because the claim made by the Ktunaxa fell outside of the scope of section 2(a) of the Charter [para 60]. The majority confirmed that section 2(a) protects the freedom of individuals and communities to hold religious beliefs and to manifest or express them in worship and practice, or by teaching and dissemination [para 71]. However, the majority clarified that section 2(a) does not protect the object of religious belief or the spiritual focal point of worship [para 71], in this case, the Grizzly Bear Spirit. It reasoned that to extend such protection, courts would be forced to inappropriately venture into questions of religious doctrine and assess the content and merits of personal beliefs [para 72].
The minority opinion (Justices Moldaver and Côté) framed the issue differently: rather than seeking protection of their “spiritual focal point of worship”, the Ktunaxa were seeking protection of their ability to act in accordance with their religious beliefs and practices [para. 133]. The minority emphasized the significance of land to the Ktunaxa nation’s spiritual practices, and recognized that development of the ski resort would sever the Ktunaxa’s connection to the land, and to the Grizzly Bear Spirit [para 117]. They concluded that the government’s decision rendered the Ktunaxa’s beliefs and practice devoid of all spiritual significance; it therefore fell squarely within the scope of, and infringed, section 2(a) [para 118]. However, the minority concluded that this infringement was justified; in their view, the Minister’s decision not to grant a right to one group to exclude others from the property was reasonable in the circumstances and in light of his statutory mandate [paras 154-155].
CLF-EFC’s joint intervention
As interveners, Christian Legal Fellowship and The Evangelical Fellowship of Canada’s submission to the Supreme Court focused on two main arguments. First, they emphasized why freedom of religion must not be automatically overridden because it may impact third-party interests—especially when those interests are not themselves Charter rights. There was concern that the lower courts’ decisions might be interpreted as suggesting that religious freedom exists only to the extent it has no impact on others. However, the Supreme Court did not adopt this reasoning.
Second, the joint CLF-EFC submission explained how state interference with the means, instruments or “vehicles” through which religious individuals or religious communities practise and manifest their faith can be equivalent to direct interference with religious practice itself. This notion was reflected in the minority’s observation that “where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom” [para. 118].
The CLF-EFC factum is available here.
The Supreme Court of Canada’s decision is available here.
The Ktunaxa Nation Council’s media release responding to the decision is available here.