Supreme Court to rule on Ktunaxa Qat’muk appeal

Ktunaxa argue religious freedom was violated when ski resort plan was approved near Invermere.

Members of the Ktunaxa Nation are pictured after presenting heir case in front of the nine justices inside the Supreme Court of Canada on Parliament Hill on Thursday, Dec. 1, 2016. The First Nations organization believes their Charter right to freedom of religion was violated with the approval of a development plan by the provincial government for a proposed ski resort on a spiritually sensitive area in the Jumbo Glacier valley, known as Qat’muk. (Darcy Luke photo)

The Supreme Court of Canada is expected to deliver a landmark ruling on Thursday in the case of religious freedom that is at the centre of dispute between the Ktunaxa Nation Council and the provincial government over the development of a proposed ski resort west of Invermere.

The issue surrounds the proposed development of the Jumbo Glacier Resort, as the Ktunaxa Nation Council argue that their religious freedoms were infringed when the provincial government approved the plan.

The Jumbo Valley area, traditionally known as Qat’muk to the Ktunaxa, carries significant spiritual and religious importance, as it is the place where the Grizzly Bear spirit was born, goes to heal itself and returns to the spirit world. According to the Ktunaxa, the Grizzly Bear spirit is an importance source of guidance, strength and protection.

The appeal to the SCOC is the last stop in a complicated legal battle between the two organizations.

In 2012, the provincial government approved a master development agreement for the resort.

That touched off the court battle, as the Ktunaxa challenged the approval of the plan in BC Supreme Court seeking a judicial review, arguing that they were not adequately consulted during the development plan process

After a nine-day trial in 2014, Justice John Savage eventually ruled that the provincial government and Steve Thomson, the Minster of Forests, Lands and Natural Resources at the time, had passed a reasonable standard for consultation and accommodation during the Master Development Plan process.

The Ktunaxa took that ruling to the BC Court of Appeal, however, it was dismissed and the original ruling was upheld.

“In my view, the chambers judge did not err with respect to the consultation or the accommodation analysis,” wrote Justice Richard Goepel, in what was a unanimous decision with two other appeal court justices. “I agree with the chambers judge that the process of consultation and the accommodation offered meets the reasonableness standard.”

That ruling was delivered in August 2015, but the Ktunaxa took their case to the highest court in the country, making their appeal to the SCOC in December last year.

“We think that the question that was before them is really going to be challenging,” Kathryn Teneese, chair of the Ktunaxa Nation Council, told the Townsman after the hearing. “It’s probably the first time that any First Nations has brought forward the question of Charter protection along with a Section 35 constitutional protection of an issue that was being argued in front of them.”

Section 35 of the Constitution Act lays out the constitutional protections to Indigenous Peoples and their treaty rights but is not included in the Canadian Charter of Rights and Freedoms.

Running concurrently alongside the legal battle is the government’s oversight of the project.

An Environmental Assessment Certificate (EAC) was issued by the province in 2004 and upheld by the courts in a judicial review process a year later. In 2009, the EAC was granted a one-time, five-year extension, which expired in 2015 after the Ministry of Environment found that the project was not ‘substantially started’.

That means there hadn’t been enough work completed at the site, which included foundation preparations and clearing and grading of the area around the proposed day lodge.

A determination of whether the project was substantially started was required under provincial legislation and the parameters contained within the EAC.

The expiration of the EAC essentially means the proponent has to restart the entire project in order to work through the necessary processes to obtain another certificate.

The proposed Jumbo Glacier Ski Resort, billed as North America’s only year-round ski resort, has been an ongoing issue since 1991.

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