The Supreme Court of Canada has filed a landmark case that pit Indigenous spiritual rights against a new ski resort.
In its Nov. 2 decision, the Supreme Court effectively gave the go-ahead to the Jumbo Glacier Resort, which is proposed for an area in southwestern B.C, just west of Invermere.
The project is opposed by the Ktunaxa Nation, which argues that the year-round resort will interfere with its ability to worship the Grizzly Bear Spirit. According to the First Nation's beliefs, the spirit resides in the area where the proposed 6,250-bed resort is set to be built.
In its decision, the Supreme Court said it is not willing to grant Ktunaxa Nation veto power over the project.
"In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship," reads the judgment written by Chief Justice Beverley McLachlin and Justice Malcolm Rowe.
The nine justices were unanimous in rejecting the Ktunaxa appeal on grounds of public interest, but two justices, Michael Moldaver and Suzanne Côté, offered dissenting reasons, based on a broader view, of the Charter religious protections.
"In granting a limited power of exclusion to the Ktunaxa, the (Supreme Court) would effectively transfer the public's control of the use of over 50 square kilometres of land to the Ktunaxa."
The Supreme Court cited accommodations made with the Ktunaxa Nation, including reducing the proposed recreational area by 60 per cent, in its ruling.
For Kathryn Teneese, the Ktunaxa Nation council chair, the decision is profoundly disappointing.
"We were asking a very difficult question, which I'm not sure if the court was up to making a decision on," she said.
Teneese said that given the recommendations of the Truth and Reconciliation Commission and Canada's adoption of the United Nations Declaration on the Rights of Indigenous People, which highlights the obligation of states to protect areas of spiritual importance, the court should have been more open to Ktunaxa Nation's case.
Glacier Resorts, Jumbo's developers, already has the support of the Shuswap people and has said it is willing to cooperate with Ktunaxa Nation going forward in terms of developing benefit agreements.
But Teneese said that the Ktunaxa Nation is not willing to compromise when it comes to its demand: "We don't want to see any permanent buildings in the area," she said.
"We think there can be activity in the area without the need for permanent habitation." Permanent structures will interfere with grizzly corridors, explained Teneese. "They need huge tracts of land over which they roam."
Tomasso Oberti, vice-president of Oberti Resort Designs, which is employed by Glacier Resorts, said that the Supreme Court decision was welcome — but not necessarily a surprise.
It would have required a "dramatic shift" in thinking of law for previous decisions to be overturned, he said, noting that the case had already worked its way up through the B.C. courts. The Ktunaxa were unsuccessful in trying to overturn the decision in the B.C. courts, prompting the appeal to the Supreme Court of Canada.
Jumbo Resort, however, still has a major hurdle before it gets off the ground.
The resort lacks environmental certification to go forward with its full plan. The project was haulted in 2015 after the province revoked its Environmental Assessment Certification.
The province determined two structures were not in compliance with a condition of the certification requiring all commercial and residential buildings be located "completely outside the avalanche hazard area."
Oberti said Glacier Resorts is in the process of deciding if it will appeal that 2015 decision.
He also added that the resort doesn't need certification to go forward, provided it is scaled down.
Glacier Resorts has "to decide whether they want to proceed with a 2,000-bed project or go for a 6,500-bed project," he said.
Asked if the resort would be viable at that size, Oberti said it is, given its close proximity to Invermere.
Should Glacier Resorts choose to reapply for certification, they will likely face more opposition from the Ktunaxa Nation.
According to Teneese, the certification process would require their input.
"Our resolve is unchanged. We're going to do whatever we can to ensure the area is protected," she said.
Teneese said that despite the loss, she hopes the Supreme Court decision serves as a learning moment for non-Indigenous Canadians about the importance of Indigenous spiritual beliefs.
"Hopefully we can work towards the path to reconciliation that we say we want," she said.
"But we have yet to give any traction to it."