Date Closed

November 2, 2017

Lead Office

Toronto

On 17 March, 2016 the Supreme Court of Canada granted leave to appeal a decision of the Court of Appeal for British Columbia in one of the first freedom of religion cases brought by a Canadian first nation.

The decision relates to Glacier Resorts Ltd.'s proposal to develop a 6,250 bed resort on Crown land at the foot of the Jumbo Mountain and Jumbo Glacier in the Purcell Mountains, British Columbia. The Ktunaxa first nations community, which has inhabited the region since before European arrival, claims that the proposed site is inhabited by the Grizzly Bear Spirit, which they believe is a source of guidance, strength, and protection, and provides a vital element to Ktunaxa spiritual practices and beliefs. The area is subject to a master development agreement with the British Columbia government and there is an outstanding environmental assessment that will permit further submissions from environmental groups.

The Ktunaxa allege that the development violates the Ktunaxa's Charter right to freedom of religion, asserting that their right to freedom of religion should not be held in less regard than that of other Canadians. They also allege that the British Columbia government failed to take into account the Ktunaxa's religious arguments, thus breaching their constitutional duty to consult and accommodate. The Court of Appeal for British Columbia rejected the freedom of religion argument and upheld the consultation and accommodation process as mandated by s. 35 of the Canadian Constitution as reasonable.

The case was argued before the Supreme Court of Canada in December, 2016 and is currently under reserve.

McCarthy Tétrault advises the Canadian Chamber of Commerce as intervener before the Supreme Court of Canada with a team led by Neil Finkelstein and includes Brandon Kain and Bryn Gray.