Supreme Court Hears First Indigenous Religious Freedom Claim


EFC – 1/12/16

Christian Legal Fellowship and The Evangelical Fellowship of Canada intervene in support of religious freedom in Ktunaxa v. British Columbia.

November 30, 2016

OTTAWA – For the first time, the Supreme Court of Canada is set to determine the merits of an Indigenous religious freedom claim under the Canadian Charter of Human Rights and Freedoms.  This historic case raises serious concerns about third-party interests limiting and overriding religious freedom and the means by which religious communities can practise and manifest their faith.

The Christian Legal Fellowship (CLF) and The Evangelical Fellowship of Canada (EFC) are joint intervenors in the case, which arises from the proposed development of a ski resort on land that is sacred to the Ktunaxa people. The Ktunaxa Nation opposes the construction of the ski resort on the basis that it would desecrate the sacred site and would interfere with a variety of their spiritual practices.

Ultimately, the B.C. Minister of Forests, Lands and Natural Resources approved the development but the Minister did not specifically address how the decision would impact the Ktunaxa Nation’s section 2(a) Charter right to freedom of religion.

The B.C. Supreme Court held that the substance of the religious freedom claim was addressed in the overall consultation process, even if not discretely analyzed in the Minister’s decision.

On appeal, the B.C. Court of Appeal held that even if the Minister had not considered the substance of the section 2(a) claim, it was insufficient to overturn the decision. The B.C. Court of Appeal also suggested that the Charter does not protect religious exercise to the extent that it requires others to “act or refrain from acting and behave in a manner consistent with a belief that they do not share.”

CLF and the EFC’s primary concern is the integrity of a robust analysis of religious freedom claims, whether they are grounded in Indigenous spiritual practices or traditional Western religions. EFC President Bruce Clemenger explains why the Ktunaxa case has the potential to impact all communities of faith:

“Any narrowing of the Court’s understanding of religious freedom for one group is of concern to all who profess and live according to religious beliefs. Concerns that one’s religious freedom might be impacted by a government decision maker’s action must be taken seriously by government bodies and the courts or the guarantee in the Charterbecomes hollow.”

The joint CLF-EFC submission focuses on two main arguments. First, it emphasizes 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. CLF Executive Director Derek Ross, who also serves as co-counsel in this intervention along with Albertos Polizogopoulos, explains:

“If religious freedom – or any Charter right, for that matter – exists only to the extent that it has no impact on others, the scope of the freedom is severely limited. After all, the existence of third-party interests is inherent in virtually all freedom of religion cases. While religious freedom is not absolute, and limits may be justified, those limitations must be proportionate and acceptable in the fact-specific context of each individual case. This is an important issue that the Supreme Court has been asked to consider in Ktunaxa, which is one of several reasons why this case has relevance for all Canadians of faith.”

Second, the joint CLF-EFC submission explains 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. Co-counsel Albertos Polizogopoulos explains:

“In the same way that a place of worship is an integral part of religious practice and observance for some believers, different means or ‘vehicles’ may also be integral for others. In the Hutterian Brethren case, that vehicle was the commune on which all Hutterites lived and which could only continue to exist if some Hutterites possessed drivers’ licenses. Here, for the Ktunaxa Nation, that vehicle is the land in question as it is integral to their relationship with the Grizzly Bear Spirit.”

Whether the Minister’s decision ought to be set aside is not specifically discussed in the CLF-EFC submission, as it focuses on ensuring that the effect of land development on the Ktunaxa Nation’s section 2(a) Charter rights to religious freedom is directly, fully and properly considered.

The CLF-EFC factum is available here.


For additional information or an interview, please contact:

Anita Levesque, Media Relations
The Evangelical Fellowship of Canada
613-233-9868 x325

Ruth A.M. Ross, Special Advisor
Christian Legal Fellowship