Freedom of religion not engaged in small-scale hydroelectric project

Administrative law – Decisions reviewed – Ministry of Forests – Permits and licences – Judicial review – Appeals – Standard of review – Reasonableness – Charter of Rights and Freedoms – Freedom of Religion

Redmond v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), [2022] B.C.J. No. 289, 2022 BCCA 72, British Columbia Court of Appeal, March 3, 2022, M.E. Saunders, G. Dickson and J.C. Grauer JJ.A.

The appellant, Mr. Redmond, is a civil engineer.  He applied for a license to build a private micro-scale run-of-river hydroelectric project (the “project”) on a creek called Wahleach Creek located on Crown land within the traditional territory of several First Nations.  The project would generate electricity to power up to eight houses.

Mr. Redmond’s application required the respondent, Director of Authorizations for the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Director”), to consult with the affected First Nations regarding the potential impact of the project on their rights and interests.  The Director denied the application, in large part because the project would have a serious impact on the Cheam First Nation’s asserted rights to cultural practices in the area (spiritual bathing).

Mr. Redmond applied for judicial review of the Director’s decision.  The judge dismissed the application for review.  Mr. Redmond then appealed.

Mr. Redmond alleged two errors in his appeal.

Mr. Redmond first argued that the judge erred in concluding that the Director’s decision had not breached his right to freedom of conscience and religion.  Mr. Redmond is an atheist and argued that the effect of the decision was to prefer the spiritual beliefs of the Cheam over his atheism.

The court of appeal considered the application of the test in “Saguenay”.  The court of appeal held that Mr. Redmond was not excluded from lawful activity based on religion, and stage 1 of the test was not met.

At stage 2, Mr. Redmond argued that, although he was not compelled to adopt another’s religious beliefs or abandon his own, the Director’s decision did compel him to a course of inaction based on another’s religious beliefs.

Stage 3 was not considered.

The court of appeal held that nothing in the Director’s decision favoured the Cheam’s religious beliefs over Mr. Redmond’s atheism, or hindered his ability to practice his atheism.  His beliefs do not entitle him to interfere with the ability of others to practice their beliefs.  His desire to build a hydroelectric project in a place where he had no right to do so, and where the Cheam have been practicing spiritual bathing, had nothing to do with a belief system protected by section 2(a) of the Charter.

Mr. Redmond’s second ground of appeal was that the judge erred in failing to find that the Director’s decision relied on the irrelevant factor of “spiritual power”, impermissibly weighing the supernatural spirit-regenerating power of the water against the natural electricity-generating power of the water that he sought to use.  Mr. Redmond tried to rely on the reasoning in the Ktunaxa Nation decision (2017 SCC 54) for his argument.

The court of appeal rejected this ground of appeal.  The court of appeal agreed with the judge that it was reasonable for the Director to consider the impact of the project on the Cheam’s spiritual practices.  The Director was required to do this pursuant to the constitution and legal guidance.

The court of appeal dismissed the appeal.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at [email protected].

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