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Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) | |
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Hearing: December 1, 2016 Judgment: November 2, 2017 | |
Citations | 2017 SCC 54 |
Prior history | on appeal from the court of appeal for British Columbia |
Ruling | Appeal dismissed. |
Holding | |
Freedom of religion protects people and their actions, but not the sites where religious ceremonies occur. | |
Court membership | |
Reasons given |
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) is a decision of the Supreme Court of Canada which concerns whether or not a First Nation can block real estate development on sacred sites by virtue of the concepts of freedom of religion and the duty to consult and accommodate (the honour of the Crown).
The majority held that the Ktunaxa Nation's rights were not violated by the decision of the province of British Columbia to allow the Jumbo Glacier ski resort to expand into area within Ktunaxa territory known as Qat’muk where Grizzly Bear Spirit is believed to live. This is because the belief in Grizzly Bear Spirit and the ability to act upon it were not impinged, only the location, and so is not within the scope of s.2 of the Charter. The majority held that the Ktunaxa still do have a S.35 right to be consulted and accommodated regarding lands where there has been no proven Aboriginal title, but that a religious connection could not be invoked to establish title in the context of overturning an administrative decision. Ktunaxa title to the area would have to be tried separately. [1]
The minority held that the duty to consult and accommodated was met, but that freedom of religion was impinged. However the provincial minister's infringement on freedom of religion was reasonable under s.1, and so the application for an injunction could be denied by the lower courts.
The Kutenai, also known as the Ktunaxa, Ksanka, Kootenay and Kootenai, are an indigenous people of Canada and the United States. Kutenai bands live in southeastern British Columbia, northern Idaho, and western Montana. The Kutenai language is a language isolate, thus unrelated to the languages of neighboring peoples or any other known language.
The spirit bear, sometimes called the kermode bear, is a subspecies of the American black bear and lives in the Central and North Coast regions of British Columbia, Canada. It is the official provincial mammal of British Columbia and symbol of Terrace, British Columbia. While most Kermode bears are black, between 100 and 500 fully white individuals exist. The white variant is known as spirit bear, and is most common on three islands in British Columbia, where they make up 10–20% of the Kermode population. Spirit bears hold a prominent place in the oral traditions of the indigenous peoples of the area. They have also been featured in a National Geographic documentary and in the BBC TV series Planet Earth III
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Tsilhqotʼin Nation v British Columbia is a landmark decision of the Supreme Court of Canada that established Aboriginal land title for the Tsilhqotʼin First Nation, with larger effects. As a result of the landmark decision, provinces cannot unilaterally claim a right to engage in clearcut logging on lands protected by Aboriginal title; they must engage in meaningful consultation with the title holder before they proceed. Although the Aboriginal title holder does not have to consent to the activity, meaningful consultation is required before infringement of the right can take place.
In Canada, the duty to consult and accommodate with Indigenous Peoples arises when the Crown contemplates actions or decisions that may affect Aboriginal or Treaty rights. This duty arises most often in the context of natural resource extraction such as mining, forestry, oil, and gas.
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