Building a large ski resort on B.C. land considered sacred to a First Nation does not breach religious rights, the Supreme Court of Canada said in a decision released Thursday.
The landmark decision could pave the way for development of the Jumbo Glacier resort in the Kootenays region of British Columbia, despite strong objections from the Ktunaxa Nation.
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Despite the court ruling, the project still has to clear environmental and other regulatory hurdles in order to proceed, including an environmental certificate, which the previous Liberal government refused to extend. Jumbo Glacier's proponents are challenging that decision in court. In addition, B.C.'s current NDP government actively campaigned against the resort while in opposition.
The Ktunaxa believe the project will drive Grizzly Bear Spirit from Qat'muk, the traditional name for the spiritual territory, and permanently impair their religious beliefs and spiritual practices.
Interpreting scope of religious protections
Interpreting the scope of religious protections under the Charter of Rights and Freedoms, the Supreme Court said those protections include freedom to hold such beliefs and manifest those beliefs, but do not extend to the protection of sacred sites.
"We arrive at these conclusions cognizant of the importance of protecting Indigenous religious beliefs and practices, and the place of such protection in achieving reconciliation between Indigenous peoples and non-Indigenous communities," reads the judgment written by Chief Justice Beverley McLachlin and Justice Malcolm Rowe.
The nine justices were unanimous in the decision to reject the Ktunaxa appeal on grounds of public interest, but two justices, Michael Moldaver and Suzanne Côté, took a broader view of the Charter religious protections.
Explaining their dissenting view, the two wrote that religious beliefs in Grizzly Bear Spirit would become "entirely devoid of religious significance, and accordingly, their prayers, ceremonies, and rituals associated with Grizzly Bear Spirit would become nothing more than empty words and hollow gestures."
The project interferes with the Ktunaxa's ability to act according to their religious beliefs and practices in a way that is "more than trivial or insubstantial," they wrote.
Nevertheless, the two justices believe the government had sufficiently weighed the religious protections with the public interest in developing the property, and said the government's decision to approve the project was "reasonable, and amounted to a proportionate balancing."
No veto power
The ruling said the B.C. government had engaged in "deep consultation" throughout the process, and had met its duty to consult and accommodate under Sec. 35 of the Constitution Act. The section does not give Indigenous groups a veto power over development projects; it guarantees a process, but not a particular result, the ruling said.
"Where adequate consultation has occurred, a development may proceed without consent," it reads.
Peter Grant, lawyer for the Ktunaxa Nation Council, called it "a very sad day" and said the justice system failed Indigenous people at the highest level.
"It is a tragedy that this judgment will be the last judgment on aboriginal issues of this chief justice, who has had a long legacy, and it's a travesty that the McLachlin court of the Supreme Court of Canada has ended its language on the rights of the Indigenous people of this country," he said. "Reconciliation now is not up to the courts, it's going to be up to us as Canadians."
Council chair Kathryn Teneese said the decision leads First Nations people to feel they are "less than" others in their rights and beliefs.
'We didn't fail'
"We feel that we didn't fail, it was others that failed to hear, and failed to really take into consideration, into account, all of the things and the tools that we have available to us today that could have allowed us to move forward toward reconciliation in this country."
Tommaso Oberti, vice-president of the Pheidias Group which is managing the project, said there is "absolutely" a plan to move on the project, though it has been on hold pending the legal challenge. Investors and the board of directors must meet to chart a path forward, but said the project is definitely not dead.
"The group obviously has been pretty persistent and the project has tremendous value," he told CBC News.
"They wouldn't have spent all this money on the project. They would have walked away before spending all the money on lawyers. That's not the case."
Assembly of First Nations National Chief Perry Bellegarde said the decision reflects a need for judges and legislators to more deeply understand traditions of First Nations people, who see ceremonies as inextricably linked to the land and water.
"It's a bit of a lack of awareness and understanding through the Supreme Court about that world view," he said.
Year-round ski resort
The project, which would be a year-round resort by Glacier Resort, has been tied up in legal wrangling since the plan's inception in 1991.
According to its website, the project would be a "unique sightseeing destination" and a big economic generator for construction jobs and resort employment. It would provide lifts to four glaciers at an elevation of up to 3,419 metres.
The three-phase project would include 5,500 bed-units plus 750 beds for staff accommodations, and is expected to draw 2,000 to 3,000 visitors a day in high season.
The resort's location was chosen for its optimal snow conditions, high elevations, large glaciers and the fact the Jumbo Creek valley has seen "significant prior use," the website reads.