First Nations Legal Fight Against Jumbo Glacier Ski Resort Struck Down in B.C. Court of Appeal

The Ktunaxa Nation is deeply disappointed with a B.C. Court of Appeal ruling on a challenge to the province’s approval of Jumbo Glacier Resort’s development plans, says Kathryn Teneese, Ktunaxa Nation Council Chair.

Last year the Ktunaxa argued in B.C. Supreme Court that there was not adequate consultation before the province signed a Master Development Agreement with Glacier Resorts Ltd. for the controversial Kootenay ski resort and that development in an area considered sacred by the First Nation would violate their constitutional right to freedom of religion.

That petition was dismissed by the Supreme Court and the Ktunaxa launched an appeal, which was heard in May but, on Thursday, the Court of Appeal upheld the initial ruling in favour of the provincial government.

“The decision of the minister to approve the Master Development Agreement did not violate the Ktunaxa’s freedom of religion guaranteed under section 2a of the Charter. The minister did not breach his duty to consult and accommodate,” the ruling reads.

Teneese said an official response to the decision will be released next week.

“We are working closely with our legal team to analyze this ruling and other developments to determine what our next steps may be,” she said.

The court ruling is the latest twist in the 24-year Jumbo Glacier Resort saga.

Despite strong opposition to plans for a billion dollar, 6,300-bed resort in the Purcell Mountains wilderness from local politicians, environmental groups and the Ktunaxa, the province granted Glacier Resorts an Environmental Assessment Certificate in 2004 and renewed it in 2009.

However, Environment Minister Mary Polak pulled the Environmental Assessment Certificate this summer after concluding the project had not substantially started.

That means the project would have to go back to square one with a new application for a certificate, but company spokesman Oberto Oberti said last month that Glacier’s lawyers will submit a request for a judicial review of Polak’s decision or will come up with plans for a smaller project that would be below the threshold of Environmental Assessment regulations.

Robyn Duncan, executive director of Wildsight, a major opponent of the project, said the Court of Appeal ruling is a blow as it removes one of the ways the project could have been stopped.

“The big take-away is that the Master Development Agreement remains intact. They still can’t develop anything without an Environmental Certificate or without reducing the scale of the project and having that approved, but, nonetheless, it remains intact,” she said.

Meanwhile, both sides are awaiting another court ruling.

A B.C. Supreme Court judge has reserved her decision on an application by the West Kootenay EcoSociety to dissolve Jumbo Glacier Mountain Resort Municipality.

The municipality, which has no residents or structures within its boundaries, was formed to administer the development agreement.