#qat'muk

[walrusmagazine]

Illustration by Lauren Crazybull (laurencrazybull.com).

The Supreme Court has decided many land disputes over the years, with several Indigenous appellants among them. Never before had it been asked to protect a landscape on the grounds that it was sacred.

Read “Inside the Legal Battle to Preserve Land As Sacred Space” by Arno Kopecky at thewalrus.ca.

[tlatollotl]

Supreme Court ruling removes barrier for massive ski resort on land First Nation considers sacred

Building a massive ski resort on B.C. land considered sacred to a First Nation does not breach religious rights, the Supreme Court of Canada says in a decision released Thursday.

The landmark decision paves the way for development of the Jumbo Glacier resort in the Kootenays region of British Columbia, despite strong objections from the Ktunaxa Nation.

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.

The decision to approve 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."

Explaining that dissenting view, the two said 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."

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.

Despite the court ruling, the project still has to clear environmental and other regulatory hurdles in order to proceed.

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.

'Tremendous value'

"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.