Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law
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...
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ftuwashingtonsl:oai:digitalcommons.law.uw.edu:wilj-1849 2023-05-15T16:17:01+02:00 Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law Mendoza, Jennifer 2020-06-01T07:00:00Z application/pdf https://digitalcommons.law.uw.edu/wilj/vol29/iss3/12 https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1849&context=wilj unknown UW Law Digital Commons https://digitalcommons.law.uw.edu/wilj/vol29/iss3/12 https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1849&context=wilj Washington International Law Journal Canadian Aboriginal Rights Canadian Charter of Rights and Freedoms Aboriginal Religious Freedom Canadian Constitutional Law Comparative and Foreign Law Constitutional Law Cultural Heritage Law Indigenous Indian and Aboriginal Law Law Law and Society Religion Law text 2020 ftuwashingtonsl 2022-05-30T16:19:30Z 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. Text First Nations UW Law Digital Commons (University of Washington) Canada Indian British Columbia ENVELOPE(-125.003,-125.003,54.000,54.000) |
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UW Law Digital Commons (University of Washington) |
op_collection_id |
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Canadian Aboriginal Rights Canadian Charter of Rights and Freedoms Aboriginal Religious Freedom Canadian Constitutional Law Comparative and Foreign Law Constitutional Law Cultural Heritage Law Indigenous Indian and Aboriginal Law Law Law and Society Religion Law |
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Canadian Aboriginal Rights Canadian Charter of Rights and Freedoms Aboriginal Religious Freedom Canadian Constitutional Law Comparative and Foreign Law Constitutional Law Cultural Heritage Law Indigenous Indian and Aboriginal Law Law Law and Society Religion Law Mendoza, Jennifer Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law |
topic_facet |
Canadian Aboriginal Rights Canadian Charter of Rights and Freedoms Aboriginal Religious Freedom Canadian Constitutional Law Comparative and Foreign Law Constitutional Law Cultural Heritage Law Indigenous Indian and Aboriginal Law Law Law and Society Religion Law |
description |
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. |
format |
Text |
author |
Mendoza, Jennifer |
author_facet |
Mendoza, Jennifer |
author_sort |
Mendoza, Jennifer |
title |
Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law |
title_short |
Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law |
title_full |
Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law |
title_fullStr |
Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law |
title_full_unstemmed |
Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law |
title_sort |
ktunaxa nation v. british columbia: a historical and critical analysis of canadian aboriginal law |
publisher |
UW Law Digital Commons |
publishDate |
2020 |
url |
https://digitalcommons.law.uw.edu/wilj/vol29/iss3/12 https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1849&context=wilj |
long_lat |
ENVELOPE(-125.003,-125.003,54.000,54.000) |
geographic |
Canada Indian British Columbia |
geographic_facet |
Canada Indian British Columbia |
genre |
First Nations |
genre_facet |
First Nations |
op_source |
Washington International Law Journal |
op_relation |
https://digitalcommons.law.uw.edu/wilj/vol29/iss3/12 https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1849&context=wilj |
_version_ |
1766002859301666816 |