With a construction deadline looming this Sunday, Jumbo Glacier Resort is also facing two legal challenges — an appeal from the Ktunaxa Nation, emboldened by the ground-breaking Tsilhqot’in decision, and another lesser known challenge from West Kootenay EcoSociety.

The Nelson-based non-profit group is challenging the incorporation of Jumbo Glacier Mountain Resort Municipality.

The municipality, with no residents and no buildings, was created by the provincial government after an amendment to the Local Government Act. The province then appointed a mayor and two councillors who make decisions on planning and zoning for the resort, but, under the Letters Patent, they are bound to follow the provincially approved resort Master Plan.

EcoSociety executive director David Reid said a B.C Supreme Court date is expected before the end of the year. The petition asks the court to quash the incorporation and strike down legislative amendments that allowed creation of the municipality.

“The idea is that a city should have citizens. This is undermining the ability of our region to participate in democracy – otherwise the people of East Kootenay would have input into the planning process,” he said.

Jumbo council is not accountable to voters, so the public is disenfranchised, Reid said.

“It also creates a precedent. If (the court action) fails, it means they could create a municipality anywhere.”

That could mean, if a mine or resource extraction company could not gain local support, the province could get around rules by creating a municipality in the area where no one was living, Reid speculated.

“The opportunity for abuse is enormous.”

Tommaso Oberti, vice president of Pheidias Project Management Corp., the company that came up with the Jumbo vision and design, said the process has been democratic as the Regional District of East Kootenay voted to ask the province to create a resort municipality.

“This is democracy. The regional government (which was Jumbo Glacier Resort’s local government at the time) decided that it was beneficial to the region for the project to be administered locally, as opposed to being administered from Cranbrook,” Oberti said in an e-mailed response to questions.

Image: Brian Turner

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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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