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

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A film documenting a battle that has stretched over almost a quarter century, pitting communities and environmental groups in B.C’s Kootenays against supporters of a proposed wilderness ski resort, is showing to sold-out audiences across North America.

The stunning scenery of the Purcell Mountains, iconic historical clips and the even-handed exploration of a clash between two visions of wilderness make Jumbo Wild an extraordinary documentary that transcends local issues and delves into the ideological battle between those who want to keep the wild in wilderness and those who believe development gives people access to nature.

“We saw sold-out shows at almost all the stops along the way and that’s because the bigger questions being addressed about how we define wilderness and what makes a place sacred are important to people around the world,” said Tess Byers, spokeswoman for Patagonia, the outdoor clothing company that funded and promoted the Sweetgrass Productions film, directed by Nick Waggoner of Salt Lake City.

In Victoria, where the film was first shown to a sold-out audience in October, a planned Dec. 10 free screening at Patagonia on Yates Street sold out immediately and there is the possibility of a second showing in January (you can add your name to the waitlist here).

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Jumbo Wild will also be available on iTunes, Vimeo, Amazon, GooglePlay, Vudu and Playstation on Dec. 11 and will be available in February on Netflix and Hulu. Showings also continue across North America and individuals can host their own screening for $99. All proceeds will go to Wildsight, a group that has fought the Jumbo Glacier Resort proposal since its inception.

The film is now being seen around the world and inspiring audiences to take action, not only on protection of the Jumbo Valley, but also in their own backyards, said Robyn Duncan, executive director of Wildsight.

The saga of the Jumbo Wild campaign is a story of love for wild places, a community coming together to successfully oppose a development they do not want and the story of the Ktunaxa Nation standing their ground to protect their sacred territory, Duncan said.

“The film resonates with people on a deeper level, cutting to the deeper questions of what is wilderness and what are we, as a society, willing to do to protect the wild,” she said.

Patagonia Funding of Doc Rankles Oberto Oberti

However, the Patagonia funding created a controversy of its own, raising questions about bias, especially as the company has supported Wildsight’s fight against Jumbo Glacier Resort and is now advocating for the remote Jumbo Valley to be protected.

But director Waggoner was determined to do justice to all sides of the argument, Byers said.

“While Patagonia’s pro-conservation stance has been no secret for several years, Nick Waggoner made this film and he approached it as a documentary endeavour in every way,” Byers said.

“He gave significant credence to the developers’ arguments during research, production and in the final film that frankly outweighs the balance present in many modern social documentaries.”

That was not the view of Oberto Oberti, the architect who first envisioned the mega-resort in the Jumbo Valley and who has been battling ever since to make his dream a reality.

Waggoner spent a considerable amount of time with Oberti and Glacier Resorts vice-president Grant Costello while making the film, but did not immediately disclose who was funding the project.

“It may be offensive to Canadians (and to justice) to see that a movie made by an American and as an advertising project for a foreign company like Patagonia is made to reverse the CORE land use decision (the legal, political, democratic and moral foundation of the two decades of process for the Jumbo Glacier Resort project) when both sides of the story are not given equal weight,” Oberti wrote in an open letter to Waggoner after being informed about Patagonia’s involvement.

But the film takes a remarkably balanced stance, showing Oberti, not as an evil developer riding roughshod over local wishes, but as a man who believes in his mission and in the ultimate good of building a resort that will allow others to experience the beauty of the area.

“Are you proposing to Patagonia the idea that to keep the JGR territory for exclusive use of wealthy heliskiers and for snowmobilers is a better use?” Oberti asks in the letter.

One of the most telling segments of the film is when Oberti, who was born in Italy, says “creating a mountain resort and access to the mountains is like creating a cathedral” and describes the soaring peaks and glaciers as the “Alps multiplied by 1,000 times.”

For many opposed to the plan for a billion-dollar, 6,300 bed resort, the commercialisation of the Alps is exactly what they want to avoid.

“My church is up there. You can’t get any closer to God can you?” asks Nolan Rad, who has spent almost seven decades hunting, trapping and fishing in the area.

The ultimate opposing viewpoint to Oberti’s vision comes from Joe Pierre of the Ktunaxa First Nation, who regard the area as sacred.

“He’s come here to build a monument to himself. Talk about being offensive to a world view that for 400 generations have never even considered that. It’s hard to take,” Pierre said in the film.

A rare nod to the animosity created by the proposed development comes from Grant Costello.

The opponents don’t believe humans should be allowed to change the environment, he explained.

“I don’t want to lose to these people. That’s what it really comes down to,” he said.

However, for Glacier Resorts and Oberti, the lengthy battle was all but lost in June when Environment Minister Mary Polak decided the project had not substantially started before its environmental certificate expired.

To continue would mean starting the environmental assessment process from scratch.

But Oberti is not ready to give up and is planning a smaller development that would avoid the need for a full environmental assessment.

Tommaso Oberti, Pheidias Group vice-president, said in an e-mail to DeSmog Canada that the company is working on a revised master plan.

“It won’t look very different. It will just be a smaller development. I don’t know yet what the timelines will be,” said Tommaso Oberti, who has not watched the film.

“But I understand there is some beautiful scenery (in the film),” he said.

So, the battle for the wilderness is not yet over and, whether or not skirmishes will continue in the peaks and glaciers that surround the Jumbo Valley, the film documenting the fight is now inspiring communities around the world.

Image: Howard P Smith, First Light on Jumbo.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.