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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Disappointment has turned to optimism for members of the Ktunaxa Nation, who are hoping that, over the summer, B.C.’s legal pendulum swung in favour of First Nations.

In April, the B.C Supreme Court turned down a Ktunaxa application for a judicial review of the Master Development Agreement between Jumbo Glacier Resort and the provincial government.

That decision is now being appealed, with a B.C. Appeal Court date expected early next year, and Kathryn Teneese, chair of the Ktunaxa Nation Council, believes that the legal climate has changed following the Supreme Court of Canada Tsilhqot’in decision in June.

“Certainly that has advanced the issue. . . We want to go to court and get the same kind of declaration the Tsilhqot’in got,” Teneese said.

“For far too long we have been treated as an interest group like the Lions Club or Rotary.”

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In the Tsilhqot’in case, the court recognized aboriginal title over a large tract of territory — meaning First Nations have the right to decide how to use the land. The ruling also emphasized the need to properly consult and accommodate First Nations who have not yet proved title to the land.

The Ktunaxa case is based on alleged inadequate consultation and the right to freedom of religion as set out in the Canadian constitution.

The Jumbo and Toby Creek valleys, 55 kilometres west of Invermere, where Glacier Resorts Ltd. wants to build an all-season ski resort with 23 lifts and more than 6,000 beds in hotels, lodges and condos, is considered sacred by the Ktunaxa Nation.

The area, known to Ktunaxa people as Qat’muk, has spiritual significance as the home of the Grizzly Bear Spirit and is sometimes translated as “where the grizzly bears go to dance.”

The consultation and accommodation sections of the Tsilhqot’in decision do set a standard for the Ktunaxa case, said John Borrows, Canada Research Chair in Indigenous Law at the University of Victoria.

Proponents of developments should be aware that, if there has not been proper consultation and the area is subsequently proved to be First Nations land, projects may have to go back to square one. There could also be questions about infringements of property rights, leading to claims for compensation, Borrows said.

A complication in the Jumbo Glacier area is that the area is also claimed by the Shuswap Indian Band, which supports the resort development.

“That could slow things down. Often the court tries to look at indigenous law to look at shared territory,” Borrows said.

Glacier Resort Ltd. claims on its website that it has First Nations support because the Shuswap Band, which is based in Invermere and broke away from the Ktunaxa Nation Council, is the nearest First Nation to the resort site.

Andrew Gage, a staff lawyer for West Coast Environmental Law, is less sure that the Tsilhqot’in decision will directly apply to the Ktunaxa case, which is not a title claim, but he believes the ruling may embolden courts dealing with First Nations cases.

“I think that the fact that they are going to appeal is significant. Most major changes to aboriginal law have been done at the Supreme Court of Canada level. Trial judges tend to be a little more cautious,” he said.

The freedom of religion argument is interesting, Gage said.

“It is one that I don’t think has been argued before and it could open a whole other area of law,” he said.

Photo: Ktunaxa Nation

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