Supreme Court of Canada dismisses Ktunaxa ski resort appeal

Stikine MLA Resource Minister Doug Donaldson believes veto claims can avoid court through discussion

The Supreme Court of Canada has dismissed an appeal by the Ktunaxa Nation who were arguing that their religious rights were infringed when the B.C. government approved a development plan for a ski resort on a glacier west of Invermere.

The Ktunaxa, who previously took their case to the B.C. Supreme Court and the B.C. Appeals Court, argued they were not adequately consulted by the B.C. government when it approved a development plan for a ski resort in the Jumbo Glacier Valley.

All nine justices agreed that the provincial government had adequately consulted the Ktunaxa, however, two justices also noted that religious Indigenous would be infringed by the construction of a ski resort in spiritually sensitive land.

The area around the proposed ski resort, known as Qat’muk, carries significant religious meaning as it is home to the Grizzly Bear spirit, which is a source of spiritual strength for the Ktunaxa.

“While the goal of the process is reconciliation of the Aboriginal and state interest, in some cases this may not be possible. The process is one of ‘give and take,’ and outcomes are not guaranteed,” wrote Chief Justice Beverly McLachlin and Justice Malcolm Rowe, in joint reasons on behalf of seven justices.

Kathryn Teneese, the chair of the Ktunaxa Nation Council, said her people will continue to work on implementing the Qat’muk Declaration, which seeks to work with provincial and federal governments to establish an Indigenous Protection Area around the area.

“We feel that our resolve is unchanged, that we will continue to move down that path,” said Teneese.

While all nine justices concluded that the BC government adequately consulted with the Ktunaxa during the resort development planning process, Justice Michael Moldaver and Suzanne Côté argued that their religious rights under Section 2 of the Charter of Rights and Freedoms would be infringed.

“The development of the ski resort would desecrate Qat’muk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the land,” wrote Moldaver. “As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. All songs, rituals, and ceremonies associated with Grizzly Bear Spirit would become meaningless.”

However, both Justices Moldaver and Côté agreed with the rest of the Supreme Court bench that the B.C. government, specifically Minister Steve Thomson of Forests, Lands and Natural Resources at the time, appropriately balanced the Ktunaxa religious rights with the government’s obligation to administer Crown land.

“The Minister was faced with two options: approve the development of the ski resort or grant the Ktunaxa a right to exclude others from constructing permanent structures on over 50 square kilometres of Crown land,” wrote Moldaver and Côté. “This placed the Minister in a difficult, if not impossible, position. If he granted this right of exclusion to the Ktunaxa, this would significantly hamper, if not prevent him, from fulfilling his statutory objectives.

In the end, it is apparent that he determined that the fulfillment of his statutory mandate prevented him from giving the Ktunaxa the veto right that they were seeking.”

MLA not sure ruling against veto affects other projects

Stikine MLA and Minister for Forests, Lands, Natural Resource Operations and Rural Development Doug Donaldson is not sure what effect the ruling will have on other projects that are being challenged by some Indigenous groups in the North, including LNG pipelines.

“The specific element around spirituality was something that was really specific to what the Ktunaxa were claiming. Although every Supreme Court of Canada decision sets some kind of precedent in the record, I’m not sure the applicability of that particular one to some of the other cases, like the Aboriginal title cases that were based on title over the land rather than spiritual conditions,” said Donaldson.

Difficulties with negotiating deals with Madii Lii and Unist’ot’en camps to allow LNG pipelines through if they were to be built are the fault of the previous provincial government’s approach, according to Donaldson.

“I believe that if the provincial government took the approach with the Wet’suwet’en and say ‘what’s your energy plan over the Wet’suwet’en territories,’ and share with them what B.C.’s energy plan is, find areas where they can work together,” said Donaldson.

He added it was about getting past the overall vision and to specifics.

“I think if we get into better upfront discussions, then the veto issue doesn’t necessarily as prominent as it’s discussed now. It’s often brought up in the first sentence, if you approach things differently then it often times doesn’t have to come up at all,” said Donaldson.

While Justices Moldaver and Côté agreed with the central question that the Ktunaxa had been adequately consulted by the B.C. government, their conclusion that spiritual rights had been infringed is another step forward in recognizing Indigenous religious freedoms, said Teneese.

“That means that at least two out of the nine heard some of the message that we were bringing forward,” she said, “and while it didn’t help in terms of the overall decision, we believe those were helpful for the beginning of building on the people’s understanding — all people’s understanding — of who we are as Ktunaxa people and as Indigenous people in this country.”

Teneese also said she was disappointed that the ruling did not seem to consider positions based on the United Nations Declaration of the Indigenous Peoples, which the Ktunaxa had made reference to in their submissions to the court.

“We felt it was timely due to Canada’s position around that issue as well as the government of British Columbia,” she said. “So it was a little disappointing that a tool that was made available wasn’t given more consideration as the court made its decision.”

Teneese added that in order to fully address reconciliation, it is up to individuals, governments and Indigenous peoples to work together towards solutions that are mutually beneficial to everyone.

Wildsight, an organization dedicated to wildlife and biodiversity conservation efforts in the Kootenay region, said it was disappointed by the Supreme Court ruling.

The organization says it stands with the Ktunaxa Nation in their continued fight to protect spiritually-sensitive territory from development in the Jumbo region, pointing to public support for keeping the area untouched.

“The strong local support has not waned; there’s huge public support to keep Jumbo wild,” said Robyn Duncan, the executive director of Wildsight. “The BC NDP and BC Green Party have taken strong public stances against the Jumbo Glacier Resort in the past.

“The Federal government continues to speak about their commitment to reconciliation with First Nations and the Canada Target 1 initiative, that’s looking at protecting 17 per cent of Canada’s landscape by the year 2020, I think we’re seeing all of these pieces coming into place and we have a real opportunity to take a step forward and support the Ktunaxa in their call to establish an Indigenous protected area in the Jumbo Valley.

While the Jumbo area is known as the home of the grizzly bear spirit to the Ktunaxa, it is a crucial habitat for wildlife such as the grizzly bear, wolverines and other animals that can be found in the Purcell Mountains.

The Supreme Court ruling does not mean the resort will be built.

The proposed development is currently stalled, after an Environmental Assessment Certificate (EAC) expired in 2015 because not enough work had been completed at the site, as former Environment Minister Mary Polak determined the project had not been ’substantially started’ in 2015. Without the EAC, the proponents — Glacier Resorts Ltd — cannot do any construction as detailed in their Master Development Plan that was approved by the province in 2012.

Glacier Resorts Ltd has applied for a judicial review of the substantially started decision rendered by Polak, which is currently winding through the B.C. Supreme Court system.

Timeline

• March 1991 – Formal Proposal submitted to the Province.

• March 1993 – Interim Agreement, granting sole proponent status, is signed by the Province and the proponent, following advertising to determine if there was any competing interest.

• 1992 – Nov. 1994 – Review under Commission on Resource and Environment (CORE) land use process. This resulted in a designation for the Jumbo area which supported commercial tourism and resort development use, subject to such development being capable of mitigating potential environmental impacts.

• July 1995 – October 2004 – Environmental Assessment Act review – Environmental Assessment Certificate granted, with 195 conditions.

• October 2005 – Judicial review of the Environmental Assessment Office process. The court upholds the Environmental Assessment Certificate.

• 2006 – Provincial review of the draft Resort Master Plan under the All Seasons Resort Policy.

• 2006 – Consultation continued under the All Seasons Resort Policy, with commitment to Ktunaxa Nation that a Master Development Agreement would not be concluded with the proponent until consultation was completed.

• July 2007 – Resort Master Plan approved by the Province.

• 2008 – The proponent and the Shuswap Indian Band developed an Impact Management and Benefits Agreement, subject to project approval.

• 2009 – Environmental Assessment Certificate received a one-time, five-year extension.

• June 2009 -The Province advised the Ktunaxa that the consultation process, as per the agreement between Ktunaxa and the Province, was complete. Ktunaxa advised the ministry of its spiritual interest in the Jumbo area. The Province agreed to consider the new information. Consultation continued.

• October 2010 – The Ktunaxa signed a Strategic Engagement Agreement with the Province, and received a Treaty Land and Cash Offer.

• November 15, 2010 – Ktunaxa presented their Qat’muk Declaration to the Province at the Parliament Buildings in Victoria.

• Summer 2011 – Thomson visited the proposed site and met with the Shuswap, the Ktunaxa and the proponent.

• March 2012 -Thomson approves the Master Development Agreement for Jumbo Glacier Resort under the Land Act and the Ministry of Lands, Parks and Housing Act.

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