The B.C. Court of Appeals has dismissed the Ktunaxa First Nation’s appeal of the B.C. Supreme Court’s previous ruling in favour of the provincial government in the Ktunaxa’s legal case against the approval of Jumbo Glacier Resort.
Resort proponents Glacier Resorts Ltd. and the Jumbo project’s lead consultant Phedias Project Management Corp. welcomed the appeal ruling, which was issued in Vancouver on Thursday, August 6th, in a press release and vowed to push ahead with scaled-back resort construction. The project can now continue under the terms of its Master Development Agreement, said Phedias vice president Tommaso Oberti on August 6th. We will be continuing with a project that falls under the 2,000 bed-unit and other thresholds of the Environmental Assessment Act.
The ruling left the Ktunaxa First Nation leaders unhappy. We are deeply disappointed with todays decision, said Ktunaxa Nation Council Chair Kathryn Teneese in an August 6th press release. We are working closely with our legal team to analyze this ruling and other developments to determine what our next steps may be. The Ktunaxa promised a more detailed response to the ruling, but had not finalized that response by the Pioneer’s press deadline on Wednesday, August 12th.
The original petition argued that the Ktunaxa had not been properly consulted during the resort approval process (which eventually resulted in the provincial government signing a Master Development Agreement for Jumbo Glacier Resort with Glacier Resorts Ltd. in 2012) and also argued that building a ski resort in the Upper Jumbo Valley and Upper Farnham areas would infringe on Qat’muk, a territory the Ktunaxa consider sacred, and correspondingly violates the Ktunaxa’s freedom of religion. After being filed in 2012, the original petition was dismissed in April 2014, with the B.C. Supreme Court judge John Savage writing that in his opinion the accommodations offered (to the Ktunaxa by the provincial government) fall within a range of reasonable responses which upholds the honour of the Crown and satisfied the Crowns duty to consult and accommodate the Ktunaxas asserted Aboriginal rights.
The appeal was heard in May 2015 and the ruling came last week, in which the Court of Appeals judge Richard Goepel, in concurrence with fellow Court of Appeals judges Elizabeth Bennett and Peter Lowry, upheld the 2014 ruling, saying that the chambers judge (Mr. Savage) made an affirmative finding that the Minister (of Forests, Lands and Natural Resource Operations) acted in good faith throughout the consultation process. In my view the chambers judge did not err with respect to the consultation or the accommodation analysis. I agree with the chambers judge that the process of consultation and the accommodation offered meets the reasonableness standard. Mr. Goepel further concluded that the decision to approve the Master Development Agreement did not violate the Ktunaxas freedom of religion guaranteed under the Canadian Charter of Rights and Freedoms.
The Ktunaxa take the position that the chambers judge erred in his analysis of the accommodation offered by the Minister (of Forests, Lands and Natural Resource Operations) with respect to their spiritual right. I disagree.,’ said Mr. Goepel in the ruling.
Another legal case centring around Jumbo Glacier Resort the West Kootenay EcoSociety’s petition for judicial review of the province’s decision to create Jumbo Glacier Mountain Resort Municipality was heard in the B.C. Supreme Court earlier this year on Wednesday, July 15th and ruling in that case is expected to take up to six months to be issued. Still another legal case centring around the resort is in the pipeline with Glacier Resort Ltd. preparing a petition for judicial review of Environment Minister Mary Polak’s June 2015 non-substantial start decision, which resulted in Glacier Resorts Ltd. losing it Environment Assessment Certificate for the project. A fourth legal case involving the proposed resort was launched by RK Heliski in 2005 and was ultimately dismissed by the B.C. Court of Appeals in 2007.
