tansi ninôtemik,
In a recent blog post we discussed the federal court decision Kebaowek First Nation v Canada Nuclear Laboratories.[1] In this decision, Justice Blackhawk states that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its adoption into Canadian legislation requires a deeper level of consultation.[2] Article 32(2) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) sets a standard of Free, Prior and Informed Consent (FPIC) when undertaking projects impacting Indigenous peoples’ land or resources.[3] Canada, unfortunately, often fails to meet the standards set by UNDRIP, as consultation is required for projects impacting Indigenous peoples’ land and resources, while consent is often not required.[4]
In Ktunaxa Nation Council v British Columbia (Forests, Lands and Natural Resource Operations) and Glacier Resorts LTD, the Ktunaxa Nation argued that their right to freedom of religion was infringed by plans to build a ski resort in Jumbo Creek Valley.[5] The ski resort would have been located in Qat’muk, the home of the Grizzly Bear Spirit.[6] The majority held that the Ktunaxa’s freedom of religion was not infringed because the ski resort did not obstruct their right to believe in the Grizzly Bear Spirit; the majority held this position even though the Ktunaxa believed that the ski resort would drive out the Grizzly Bear Spirit.[7]
While the Supreme Court of Canada decision was a disappointment, the Ktunaxa Nation succeeded in protecting the 600 grizzly bears in the area, and in turn, the spiritual significance of the Grizzly Bear Spirit.[8] The federal government, private companies, and environmental organizations donated millions of dollars for a buyout to conserve Jumbo Creek Valley for the grizzly bears.[9]
How can Ktunaxa be reconciled with the new Kebaowek decision? What can we expect from future decisions relating to consultation and FPIC? Let us know your thoughts in the comments!
Until next time,
The ReconciliACTION Team
Citations
[1] ReconciliACTION Yeg, “The Honourable Madam Justice Blackhawk gave UNDRIP teeth in the new Kebaowek First Nation v Canada Nuclear Laboratories decision!” (24 February 2025), online: <www.reconciliactionyeg.ca> [perma.cc/X24G-P2GF].
[2] Ibid.
[3] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2 October 2007), at Article 32(2), online: <www.un.org> [perma.cc/F556-U2CC].
[4] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 SCR 511 at para 48.
[6] Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54.
[7] Ibid.
[8] “Goodbye Ski Resort, Hello Grizzly Bear Corridor!” (April 20, 2020) NRDC, online: <www.nrdc.org> [perma.cc/8XGE-TSHA].
[9] Ibid.
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