Ktunaxa profoundly disappointed but undeterred by Supreme Court ruling

The Ktunaxa Nation lost its appeal at the country’s highest court in a unanimous decision released Thursday morning. The nation was fighting the approval of a ski resort in an area held sacred to them.

'We feel that we didn’t fail, it was others that failed to hear,' said Kathryn Teneese

A landmark decision released Thursday by Canada's top court paves the way for development of the Jumbo Glacier resort in the Kootenays region of British Columbia, despite strong objections from the Ktunaxa Nation. (Robson Fletcher)

The ruling came out before the sun came up over the Ktunaxa Nation on Thursday morning, located more than 3,000 kilometres away from the Supreme Court of Canada, in southeastern B.C..

Kathryn Teneese, chair of the Ktunaxa Nation Council, was on her way to the nation's legal counsel's office in downtown Vancouver when the decision was released. She said the court's unanimous dismissal of their appeal left her feeling less than, and somehow different from, the rest of Canadians.

"I felt that we were less than, in our right to our beliefs," she said.

The nation was fighting the approval of a ski resort in an area held sacred to them and had argued that allowing the mega project Jumbo Glacier Resort to go ahead would irreparably harm their spiritual beliefs and practices — a violation of their charter right to religious freedom.

But Teneese said she doesn't see the case as a failure for the Ktunaxa.

"It was others that failed to hear and failed to really take into account all of the things and the tools that we have available to us today that could have allowed us to move forward towards reconciliation in this country," she said.

Robert Phillips of the First Nations Summit addresses the media alongside Kathryn Teneese on Nov. 2, 2017 following the Supreme Court judgement related to the Jumbo Glacier Resort. (Chantelle Bellrichard)

The justices agreed that the Ktunaxa have a sincere spiritual connection to the area they refer to as Qat'muk, home to the Grizzly Bear Spirit. But the majority did not agree that a specific site, or "object of beliefs" like the Grizzly Bear Spirit, could be protected under the Charter of Rights and Freedoms.

"The charter protects the freedom to worship, but does not protect the spiritual focal point of worship," the judgment stated.

Justices Michael J. Moldaver and Suzanne Côté disagreed with this position and, in their own analysis, found that the B.C. Minister of Forests, Lands and Natural Resource Operations' approval of the ski resort would do irreparable damage to the Ktunaxa's spiritual beliefs. But they still found the minister was justified in approving the project.

"The Minister's decision is reasonable, however, because it reflects a proportionate balancing between the Ktunaxa's s. 2 (a) Charter right and the Minister's statutory objectives: to administer Crown land and dispose of it in the public interest," wrote Justice Moldaver. 

While characterizing the ruling as a profound disappointment, Teneese said the Ktunaxa remain committed to protecting the area from development.

"We will continue … to provide protection to Qat'muk, because that's the task that was given to us by the Creator and no one else can take that away from us," she said.

No mention of UNDRIP in decision

Legal counsel for the Ktunaxa described the outcome as a failure of the legal system at the highest level.

"Faith in the justice system that Aboriginal people have, the Ktunaxa had, and their trust, was not upheld today," said Peter Grant, at a news conference Thursday morning in West Vancouver.

Grant added it was surprising there was no mention of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the judgment; since other international agreements were referenced, like the 1948 UN Universal Declaration on Human Rights. 

"[The justices] completely avoided it, like the plague," he said. UNDRIP was referenced in Ktunaxa's factum submitted to the Supreme Court for this case. 

"By not talking about it they make it invisible.... Courts make things invisible by not talking about them."

Particularly relevant to the Ktunaxa case would be Article 25 of UNDRIP, said Grant. It asserts that Indigenous people have the right to maintain their spiritual relationship with their territories.

While the judgment didn't mention UNDRIP, B.C. Premier John Horgan made a point of acknowledging it in a brief response to the Supreme Court outcome on Thursday. His party has repeatedly committed to implementing the declaration.

"The court ruling has an impact on rights and title and on reconciliation and on UNDRIP as well. So we're going to look at that closely and work with Indigenous people — not just the Ktunaxa in the Jumbo area, but right across B.C. to try and figure out what this decision means."

'Not allowed to say no'

The ski resort still faces additional hurdles, including a legal challenge involving its environmental assessment certificate. 

Teneese said the Ktunaxa are still figuring out what they will do next to protect the area.

She said whatever the nation decides, they're looking for a path that feels reflective of a changed relationship with the federal and provincial government.

"It seems that we are not allowed to say no. We're allowed to agree with everything that's going on, but we express ourselves in a way that may be contrary to the direction that the government or others have determined, and if we say no then it's not acceptable," she said.

While Teneese said they're good with the direction they took in the courts, Grant said he doesn't see others rushing to make a similar argument before the courts.

"I can't see other Indigenous groups wanting to open up their doors of their spirituality to a court when this is how the court responds to them," he said.