The Ktunaxa Nation, which for 25 years has battled plans to build a massive ski resort on land that is considered sacred, will make its case to Canada’s top court with a freedom of religion argument that could set a precedent for indigenous people worldwide.
The Supreme Court of Canada has agreed to hear the Ktunaxa appeal of a 2012 decision by the B.C. government to approve plans by Glacier Resorts Ltd. for a 6,250 bed, all-season ski resort on Crown land in the Purcell Mountains, about 55 kilometres west of Invermere.
Plans called for Jumbo Glacier Resort to be built at the foot of Jumbo Glacier in an area known as Qat’muk by the Ktunaxa who believe it is where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world. That means it is an area where Ktunaxa people receive strength and guidance and they believe the development would desecrate the sacred area.
The Ktunaxa previously argued unsuccessfully in front of B.C. Supreme Court and the B.C. Court of Appeal that allowing the development to go ahead violated the Nation’s right to freedom of religion and that the B.C. government failed to consider that right or adequately consult Ktunaxa on their constitutionally protected aboriginal rights. Both cases were dismissed.
Kathryn Teneese, Ktunaxa Nation Council Chair, said in an interview that she is elated about the Supreme Court decision.
“I am certainly pleased that, at last, we are going to have the opportunity to present our story to the Supreme Court of Canada,” she said.
“Our right to freedom of religion should not be held in less regard than that of other Canadians. We are confident that the Supreme Court of Canada will agree that Ktunaxa beliefs and practices are vital to who we are and must be taken into account by statutory decision-makers.”
The fight is not just for Ktunaxa, but for every Canadian who values the Charter of Rights and Freedoms, Teneese said.
The case will inevitably be watched closely by groups throughout Canada and the world, said Teneese, who added that legal teams are already looking at lists of possible intervenors.
“It is my hope the Supreme Court of Canada is cognizant of the impact this case may have on indigenous people, not just in Canada, but worldwide,” she said.
Looking at average wait times for Supreme Court cases, it is possible the case will go to court in the winter of 2017, which will give plenty of time to prepare, Teneese said.
Jumbo Wild, a documentary about the battle over the Jumbo Glacier Resort, has recently been added to Netflix.
The Jumbo Glacier battle has brought a diverse group of environmentalists, business people, local politicians and First Nations together in opposition and Robyn Duncan, Wildsight executive director, said people in the area are overjoyed that the Ktunaxa values and spiritual beliefs will be explained in the highest court in Canada.
“People locally are very excited — not only for what this means for Jumbo, but what it means to the Ktunaxa. The fight to protect Qat’muk has built a bridge between the Ktunaxa Nation and non-native locals to work together to protect this special place,” Duncan said.
The immediate effect of the appeal is not likely to be apparent because Environment Minister Mary Polak ruled that the project had not been substantially started and pulled the project’s Environmental Assessment Certificate last year.
However, the development group, Pheidias Project Management Corp., is asking for a judicial review of that decision and has alleged that Polak’s friendship with Teneese influenced the decision.
That came as a surprise, Teneese said, with a laugh.
“I didn’t know we were that close. I have a cordial working relationship with all the government officials I have to deal with and I certainly don’t know Ms. Polak in a way that would suggest a friendship.”
The development group is also looking at scaling down the scope of the resort to fewer than 2,000 beds in an effort to avoid starting the environmental assessment process from scratch.
Tommaso Oberti, Phaedias Group vice-president, said in an interview that he does not yet know the effect the Ktunaxa leave to appeal will have on the company’s plans, but it is obviously important.
“We hope justice will be served,” he said.
There are currently several balls in the air, but the project is still alive, said Oberti, reiterating that, with a smaller resort, there will be no need to go back to square one.
“We are trying to understand the process and it seems to be at the minister’s discretion,” he said.
“We are waiting for direction from the province.”
A smaller, cozier resort is very doable and would fit well with the area, Oberti said.
But Teneese emphasized that the objections would be the same, whatever the size of the resort.
“Legal counsel has advised us that they have no legal authority to do anything right now because they don’t have an Environmental Assessment certificate,” she said.
Duncan agreed that Glacier Resorts has no legal authority to move forward with any size of resort.
“The Jumbo Valley is sacred territory for the Ktunaxa and critical grizzly bear habitat. No permanent development should take place there,” she said.
Photo: Howard P Smith of Phototide