The Supreme Court of Canada has dismissed an appeal by the Ktunaxa Nation who were arguing that their religious rights were infringed when the BC government approved a development plan for a ski resort on a glacier west of Invermere.
The Ktunaxa, who previously took their case to the BC Supreme Court and the BC Appeals Court, argued they were not adequately consulted by the BC government when it approved a development plan for a ski resort 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 Qatsa国际传媒檓uk, carries significant religious meaning as it is home to the Grizzly Bear spirit, which is a source of spiritual strength for the Ktunaxa.
sa国际传媒淲hile 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 sa国际传媒榞ive and takesa国际传媒�, and outcomes are not guaranteed,sa国际传媒� 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 Qatsa国际传媒檓uk Declaration, which seeks to work with provincial and federal governments to establish an Indigenous Protection Area around the area.
sa国际传媒淲e feel that our resolve is unchanged, that we will continue to move down that path,sa国际传媒� 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 C么t茅 argued that their religious rights under Section 2 of the Charter of Rights and Freedoms would be infringed.
sa国际传媒淭he development of the ski resort would desecrate Qatsa国际传媒檓uk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxasa国际传媒檚 connection to the land,sa国际传媒� wrote Moldaver.
sa国际传媒淎s 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.sa国际传媒�
However, both Justices Moldaver and C么t茅 agreed with the rest of the Supreme Court bench that the BC government, specifically Minister Steve Thomson of Forests, Lands and Natural Resources at the time, appropriately balanced the Ktunaxa religious rights with the governmentsa国际传媒檚 obligation to administer Crown land.
sa国际传媒淭he 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 fifty square kilometres of Crown land,sa国际传媒� wrote Moldaver and C么t茅. sa国际传媒淭his 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.sa国际传媒�
While Justices Moldaver and C么t茅 agreed with the central question that the Ktunaxa had been adequately consulted by the BC government, their conclusion that spiritual rights had been infringed is another step forward in recognizing Indigenous religious freedoms, said Teneese.
sa国际传媒淭hat means that at least two out of the nine heard some of the message that we were bringing forward,sa国际传媒� she said, sa国际传媒渁nd while it didnsa国际传媒檛 help in terms of the overall decision, we believe those were helpful for the beginning of building on the peoplesa国际传媒檚 understanding sa国际传媒� all peoplesa国际传媒檚 understanding sa国际传媒� of who we are as Ktunaxa people and as Indigenous people in this country.sa国际传媒�
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.
sa国际传媒淲e felt it was timely due to Canadasa国际传媒檚 position around that issue as well as the government of British Columbia,sa国际传媒� she said. sa国际传媒淪o it was a little disappointing that a tool that was made available wasnsa国际传媒檛 given more consideration as the court made its decision.sa国际传媒�
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.
sa国际传媒淭he strong local support has not waned; theresa国际传媒檚 huge public support to keep Jumbo wild,sa国际传媒� said Robyn Duncan, the executive director of Wildsight. sa国际传媒淭he BC NDP and BC Green Party have taken strong public stances against the Jumbo Glacier Resort in the past.
sa国际传媒淭he Federal government continues to speak about their commitment to reconciliation with First Nations and the Canada Target 1 initiative, thatsa国际传媒檚 looking at protecting 17 per cent of Canadasa国际传媒檚 landscape by the year 2020, I think wesa国际传媒檙e 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 sa国际传媒檚ubstantially startedsa国际传媒� in 2015.
Without the EAC, the proponents sa国际传媒� Glacier Resorts Ltd sa国际传媒� 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 BC Supreme Court system.
Timeline
sa国际传媒� March 1991 - Formal Proposal submitted to the Province.
sa国际传媒� 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.
sa国际传媒� 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.
sa国际传媒� July 1995 - October 2004 - Environmental Assessment Act review - Environmental Assessment Certificate granted, with 195 conditions.
sa国际传媒� October 2005 - Judicial review of the Environmental Assessment Office process. The court upholds the Environmental Assessment Certificate.
sa国际传媒� 2006 - Provincial review of the draft Resort Master Plan under the All Seasons Resort Policy.
sa国际传媒� 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.
sa国际传媒� July 2007 - Resort Master Plan approved by the Province.
sa国际传媒� 2008 - The proponent and the Shuswap Indian Band developed an Impact Management and Benefits Agreement, subject to project approval.
sa国际传媒� 2009 - Environmental Assessment Certificate received a one-time, five-year extension.
sa国际传媒� 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.
sa国际传媒� October 2010 - The Ktunaxa signed a Strategic Engagement Agreement with the Province, and received a Treaty Land and Cash Offer.
sa国际传媒� November 15, 2010 - Ktunaxa presented their Qatsa国际传媒檓uk Declaration to the Province at the Parliament Buildings in Victoria.
sa国际传媒� Summer 2011 - Thomson visited the proposed site and met with the Shuswap, the Ktunaxa and the proponent.
sa国际传媒� 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.
