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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A municipality should have residents — and grizzly bears and mountain goats don’t count, according to B.C. Green Party leader Andrew Weaver who tabled a private member’s bill in the legislature Wednesday aimed squarely at the controversial Jumbo Glacier Mountain Resort Municipality.   Weaver’s bill to amend the Local Government Amendment Act would repeal the Liberal government’s 2012 changes to legislation that made it possible for mountain resort municipalities to exist without residents.   The 2012 changes were designed to push through development of Jumbo Glacier Resort, a proposed 6,300 bed resort in the wilderness of the Purcell Mountains, 55 kilometres west of Invermere — a project strongly opposed by local residents and First Nations.   Jumbo Glacier Mountain Resort Municipality was created in November 2012 and the province then appointed a mayor and two councillors. Even though the municipality had no residents or buildings, it became eligible for provincial government grants of $200,000 a year and about $50,000 in federal gas tax money.

The existence of the municipality has been a flashpoint for many opponents and, with the future of the development now in doubt, there is a renewed push to scrap the no-resident municipality. 

“The idea of a town with no people and an appointed mayor and council to preside over that town is preposterous and flies in the face of local democracy and local decision-making,” said Robyn Duncan executive director of Wildsight, an organization that has been on the front lines of the Jumbo fight.   “It is completely unacceptable that an unelected body can make land-use decisions and be accountable to no one,” she said.   It is a view shared by Weaver, who is adamant that provincial laws should not be used to help specific projects succeed or fail.   “The fact that you can create a municipality with no people and no buildings and put in a mayor and two councillors and give them government money is truly bizarre — only in B.C.,” he said.   The reason the “ridiculous loophole” exists is because the government had a pet project that it wanted to succeed, Weaver said, admitting that the chance of his bill getting the support of government is almost non-existent.   “I am hopeful, but I don’t think it will go through as long as (Energy and Mines Minister) Bill Bennett is in government. This was his clearly his pet project and he was a huge advocate for it,” he said.   If the bill did go through, it is likely the resort municipality would argue to be grandfathered in, Weaver said.   “But this is essentially a shot across the bow. It’s saying clean up your act government. This kind of shenanigans has to stop,” he said.   If nothing else, the realities of climate change should give the government pause, said Weaver, who is a climate scientist.   Between 1985 and 2005 glaciers in that area lost 15 per cent of their total mass and glaciologists predict that, by 2100, glaciers that the resort is relying upon for year-round skiing will not exist, he said.   “It makes no sense on so many levels.”   Last year, after 24 years of controversy, Environment Minister Mary Polak pulled the project’s environmental assessment certificate, concluding the billion dollar project had not substantially started during the 10 years since the certificate was granted.   Proponents, Glacier Resorts Ltd. and the Phaedias Group, have said they plan to appeal that decision and are considering changing the proposal to a smaller resort that would not need to go through a full environmental assessment.   However, any proposal to build in the area will face a legal challenge from the Ktunaxa First Nation, who have been given leave to appeal to the Supreme Court of Canada, based on a freedom of religion argument that could set a precedent for indigenous people worldwide.   The area at the foot of Jumbo Glacier is known as Qat’muk by the Ktunaxa people who believe it is where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world.   Jumbo Glacier Mountain Resort Municipality Mayor Greg Deck, former mayor of Radium Hot Springs, said he hopes the government does not repeal the legislation.   “The wisdom of the original legislation was that it anticipated doing really good planning in advance, through a resort municipality, and I believe that is still valid,” he said.   People who disagree with plans for the Jumbo Valley should not try and take away a tool that could be valuable in other areas, Deck said.   In the meantime, the municipality is deferring acceptance of government grants until the situation around the development clarifies.   “We are a little bit hostage to legal challenges. The Ktunaxa appeal adds a bit more uncertainty which we have to wait out,” Deck said.   The bulk of the municipality’s money has gone on defending a series of legal challenges, Deck said.   “It’s a bit frustrating when people say we shouldn’t be spending money and then they keep suing us.”

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A decision on whether pouring two building foundations and clearing trees constitutes a “substantial start” for the Jumbo Glacier Resort project will be made by the Environmental Assessment Office in June and the report will include information on buildings located within avalanche zones.

That assessment will then go to Environment Minister Mary Polak for the final verdict on whether the controversial billion-dollar resort should go ahead.

“Our current plan is to have a decision on whether the project has been substantially started by early to mid-June,” said an Environment Ministry spokesman.

“Before finalizing the report we will be providing Glacier Resort Ltd., Ktunaxa Nation Council and the Shuswap Indian Band an opportunity to review a confidential draft of the report.”

That could include comments on the effect of an Environmental Assessment Office order to stop work on the two buildings because of avalanche threats, he said.

The stop work order was issued after a report found the service building was in a high-risk avalanche red zone and the day lodge — which was originally planned for another site — was in the moderate-risk blue zone.

Plans for the 6,300 bed resort on Crown land west of Invermere have been in the works for 24 years.

The project was granted an Environmental Assessment Certificate in 2004, which was renewed in 2009, but little work was done on the site until a flurry of activity shortly before last fall’s deadline. For the certificate to become permanent, Glacier Resorts must prove that construction was well underway before the deadline.

Tommaso Oberti, vice-president of the project’s management company, said the location of the day lodge and the service building had to be changed at the last minute because of deadline pressures and the new sites were chosen based on available avalanche mapping.

The project team believed “without a doubt that, following the opening of the ski area, the avalanches would have been, in the worst case, smaller, not larger, because of planned and effective mitigation measures such as bombing,” Oberti said in an email.

The service building will not be used in winter, to respect the determination of a 30-year risk occurrence, but the day lodge is safe and there are numerous examples of how risks are managed at other resorts, Oberti insisted.

“It is safe and it must be permissible to build a day lodge in a blue zone with application of avalanche risk mitigation measures that reduce the risk to people and structures to an acceptable low risk level,” he said.

The main resort and overnight tourist accommodation are in a part of the valley without avalanche risks, Oberti said.

Invermere Mayor Gerry Taft, who opposes the project, said the stop work order means little as, after the deadline, the company was not permitted to continue building until there is a decision on whether to hand them an Environmental Assessment certificate.

The order makes it appear as if the province is strictly enforcing its rules, but it is more like a public relations move, said Taft, who added that few people in Invermere are confident that the provincial government will make the right decision.

“I don’t have much faith in the government…I look at things quite cynically,” he said.

Image Credit: Jumbo Glacier Resort via Flickr

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