Washington International Law Journal


Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious freedoms claims of the Canadian Charter of Freedom and Rights. There, the Canadian Supreme Court decided that the Ktunaxa Nation did not have religious freedom claim under Section 2(a) over their traditional territory. The decision allowed Glacier Resorts Ltd. and the province of British Columbia to begin building a year-long ski resort that would destroy sacred Ktunaxa land and drive away the grizzly bear population—which played a significant role in the Ktunaxa’s religious beliefs. Given that the Ktunaxa brought a religious freedom claim under Section 2(a) of the Canadian Charter of Rights and Freedoms, their argument was not able to withstand scrutiny in Court. This demonstrated that Aboriginal peoples are instead more likely to succeed with claims under Section 35 of the Constitution. As such, instead of looking at Ktunaxa Nation v. British Columbia as another precedent-setting case, this case is arguably of little precedential value given the limited record that was available when the Supreme Court of Canadian heard the case.

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