A precedent-setting case that could affect the ability of First Nations to protect their sacred sites and which has implications for indigenous rights worldwide, is heading to Canada’s top court Thursday.

The Ktunaxa First Nation, based in Cranbrook, in a lawsuit against the B.C. government and Glacier Resorts Ltd, is arguing the first Canadian case based on aboriginal spirituality and freedom of religion and the case has drawn interveners from faith groups, human rights organizations and business groups from across Canada.

Lawyers acting for the Ktunaxa Nation and Kathryn Teneese, Ktunaxa Nation Council Chair, will argue that, in 2012, the Minister of Forests, Lands and Natural Resources violated the First Nation’s religious rights by approving the master plan for the proposed Jumbo Glacier Resort in an area known as Qat’muk, the home of the grizzly bear spirit, where many key Ktunaxa spiritual beliefs and practices are centred.

The argument, which also claims the B.C. government failed to adequately consult Ktunaxa on their constitutionally protected aboriginal rights, was previously rejected by B.C. Supreme Court and the B.C. Court of Appeal, but, in March the Supreme Court of Canada agreed to hear an appeal.

Teneese said both the Charter of Rights and Freedoms and the Constitution Act provide for traditions to be practiced and it is unfortunate the lower courts failed to recognize those rights.

“But we are confident the Supreme Court of Canada will uphold the rights of all Canadians to practice their religions and traditions free from interference and the threat of destruction of sacred places,” she said.

Qat’muk, the name of the land in the central part of the Purcell Mountains, where Glacier Resorts planned to build the massive ski resort, existed long before the Jumbo Glacier proposal and before Canada became a country, Teneese said.

“As a Nation we have spent too much money fighting in the court system to prove what we have always known. Qat’muk is vital to Ktunaxa — as well as (to) local wildlife populations and biodiversity — and must be protected,” she said.

The Ktunaxa is arguing the first Canadian case based on aboriginal spirituality & freedom of religion https://t.co/p6d1FbTw57 #cdnpoli

— DeSmog Canada (@DeSmogCanada) November 30, 2016

The Nation has fought the Jumbo Glacier proposal since it first surfaced in 1991, both on the belief that Ktunaxa spirituality depends on the fate of Qat’muk and on concerns for water quality and the effect of the resort on the grizzly bear population.

Ironically, there is now little chance that the resort will be built as, last year, Environment Minister Mary Polak decided the resort had not met the “substantial start threshold,” meaning the Environmental Assessment Certificate expired.

Jumbo Glacier Resort proponent Oberto Oberti then said the company would build a smaller resort, which would not have to undergo another full environmental assessment.

But, this week, a spokesman for the Forests, Lands and Natural Resources Ministry said “the proponents of Jumbo Resort submitted a revised master plan that was smaller in scope, however this revised proposal was not accepted by the ministry.”

Glacier Resorts is suing the provincial government in hopes of overturning Polak’s decision to cancel the Environmental Certificate, but no court date has yet been set.

However, the legal battle over the principle of freedom of religion continues and legal experts believe that, whichever way the decision goes, there will be significant implications for communities whose religious and cultural practices are connected to sacred sites or animals.

Robyn Duncan, executive director of Wildsight, a conservation group that has fought against the Jumbo Glacier proposal for 25 years, said Thursday will be a truly significant day for the Ktunaxa Nation and the thousands of Kootenay citizens that are standing behind them in their fight.

“This is the first time that a freedom of religion argument will be heard in the Supreme Court on indigenous spiritual and cultural rights. The list of interveners is as long as it is diverse — from Amnesty International to the Canadian Chamber of Commerce to a number of other First Nations,” she said.

“The implications of this case will be far-reaching.”

The 16 interveners also include B.C. Civil Liberties Association, the Canadian Muslim Lawyers Association, Attorney General of Saskatchewan and the Attorney General of Canada.

The case should concern all Canadians of faith says a blog posting from the Christian Legal Fellowship and the Evangelical Fellowship of Canada, who are interveners.

ELC president Bruce Clemenger wrote that the Ktunaxa case has the potential to affect all faith communities.

“The loss of religious freedom for any faith group means a loss of religious freedom for every other faith group in Canada,” he wrote.

“If a religious freedom claim can be overlooked by a government decision-maker, then the freedom becomes hollow. There will be no requirements for governments to respect religious freedom in any meaningful way or to reasonably accommodate our freedom to worship and live out our faith if it may impact others,” he wrote.

The case also puts a spotlight on the broader issue of the rights of government to override the wishes of First Nations, said Montana Burgess, executive director of the West Kootenay EcoSociety.

The EcoSociety previously argued unsuccessfully in the courts against the province’s incorporation of the Jumbo Glacier Mountain Resort Municipality, a municipality without residents or buildings.

The council, made up of a mayor and two councillors appointed by the province, continues to meet, even though there is no action on the development.

Image: Ktunaxa First Nation via ʔaq̓am

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My grandparents came here from Japan at the beginning of the 20th century. Although it would be a one-way trip, the perilous journey across the Pacific was worth the risk. They left behind extreme poverty for a wealth of opportunity.

But Canada was different then, a racist country built on policies of colonization, assimilation and extermination of the land’s original peoples. My grandparents and Canadian-born parents, like indigenous people and others of “colour”, couldn’t vote, buy property in many places or enter most professions. During the Second World War, my parents, sisters and I were deprived of rights and property and incarcerated in the B.C. Interior, even though Canada was the only home we’d ever known.

A lot has changed since my grandparents arrived, and since I was born in 1936. Women were not considered “persons” with democratic rights until 1918. People of African or Asian descent, including those born and raised here, couldn’t vote until 1948, and indigenous people didn’t get to vote until 1960. Homosexuality was illegal until 1969!

In 1960, John Diefenbaker’s Progressive Conservative government enacted Canada’s Bill of Rights, and in 1982, Pierre Trudeau’s Liberals brought us the Charter of Rights and Freedoms, with equality rights strengthened in 1985.

We should celebrate those hard-won rights. I’m happy to have witnessed much of the progress my country has made. But there’s room for improvement. And in some ways Canada has gone backward.

When I was a boy, we drank water from lakes and streams without a thought. I never imagined that one day we would buy water in bottles for more than we pay for gasoline. Canada has more fresh water per capita than any nation, but many indigenous communities don’t have access to clean drinking water.

When I was growing up in Vancouver, Dad would take me fishing for halibut off Spanish Banks, sturgeon on the Fraser River and salmon in English Bay. Today I can’t take my grandchildren fishing in those places because the fish are gone.

As a boy, I never heard of asthma. Today, childhood asthma is as common as red hair. And half of all Canadians live in places with unacceptable air pollution.

I also remember when all food was organic. I never thought we’d have to pay more not to have chemicals in our food. Today we can’t avoid the toxic consequences of our industrial and agricultural activities. We all have dozens of toxic pollutants incorporated into our bodies.

We may think the highest rate of deforestation is in the Amazon but in 2014 Canada became the world leader in loss of pristine forests.

Surely, in a nation with so much natural wealth, we should expect better appreciation, treatment and protection of the air, water, soil and rich biological diversity that our health, prosperity and happiness depend on.

The right to live in a healthy environment is recognized by more than 110 nations — but not Canada. That inspired the David Suzuki Foundation and Ecojustice to launch the Blue Dot movement a little over a year ago.

It’s exceeded our expectations, with more than 100 municipalities passing environmental rights declarations and a number of provinces considering or committing to the idea. The next step is to take it to the federal level, by calling for an environmental bill of rights and, ultimately, an amendment to the Charter of Rights and Freedoms.

The environmental rights campaign is also about human rights and social justice — something recognized by the United Nations, which has appointed a special rapporteur on human rights and the environment. A country and its values are measured not by the number of extremely wealthy people but by the state of its poorest and most vulnerable. Many environmental problems are tied to societal inequities — hunger and poverty, chronic unemployment, absence of social services, inadequate public transit and often conflicting priorities of corporations and the public interest — as people at the lower end of the socioeconomic scale are disproportionately affected by environmental hazards and toxic pollution.

Canada has come a long way, but we can’t be complacent. We must work to maintain and strengthen the rights of all Canadians, to build an even better Canada. That means giving all Canadians the right to a healthy environment.

David Suzuki is a scientist, broadcaster, author and co-founder of the David Suzuki Foundation. Written with contributions from David Suzuki Foundation Senior Editor Ian Hanington.

Learn more at www.davidsuzuki.org.

Image: Kris Krug

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