In June 2009 an elder of the Ktunaxa First Nation in southeastern British Columbia disclosed that, five years earlier, he had had a “revelation” involving a “Grizzly Bear Spirit” that lived in a particular valley in the region. Chris Luke, Sr. said he finally decided to reveal his metaphysical experience because he was worried the apparition, said to be of great Indigenous religious significance, was about to be driven from its home. It had lived there through decades of development including logging, road-building, helicopter skiing and hard rock mining, but now faced an untenable situation: the impending construction of a ski resort.
Speaking through a translator, Luke told a B.C. government minister the Grizzly Bear Spirit’s wellbeing depended upon precisely that part of the valley where the resort’s day lodge, overnight accommodation and other facilities were to be built. Any earth-moving or permanent structures would cause the Spirit to flee the sacred area, Qat’Muk, forever. The associated religious practices of any observant Ktunaxa would thence cease to have meaning.
Luke’s revelation was another major setback for the Jumbo Glacier Resort project, which had doggedly lurched through decades of circuitous and expensive provincial regulatory processes, political opposition and litigation. The Ktunaxa, whose previously voiced concerns had prompted substantial changes to the resort’s design and footprint, plus promises of jobs and economic benefits, now declared the project unacceptable in any form.
The band went to court seeking a ruling that the Master Development Agreement (MDA) between the B.C. government and the project’s proponent, Glacier Resorts Ltd., had been issued in error. The Ktunaxa claimed the MDA violated their religious freedom under Section 2(a) of the Charter of Rights and Freedoms, and that the regulatory process had not included adequate consultation as was their right under Section 35 of the 1982 Constitution Act.
Two weeks ago, the Supreme Court of Canada rejected both arguments. In doing so it delivered a rebuke that was as decisive as it was surprising to all those who – whether gleefully or mournfully – had assumed the court would drive the final nail into Jumbo’s coffin. Instead, it unanimously denied the Ktunaxa’s appeal of the two B.C. lower court rulings that had upheld the MDA, and emphatically asserted that the aboriginal right to consultation does not confer veto power if a native group doesn’t get what it wants. The ruling clarifies previously muddy jurisprudence on this subject, and should strengthen any future project or proposal that rubs up against aboriginal interests.
Writing for the seven-member majority (two justices wrote a partial concurrence, generating media reports of a “7-2 decision”), Chief Justice Beverley McLachlin ruled that “the Ktunaxa’s claim does not fall within the scope of s. 2(a) because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the Minister’s decision to approve the project…The state’s duty is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit.” McLachlin also chided the Ktunaxa for attempting to slide a new claim into a petition for judicial review. Should the Ktunaxa wish to assert a new claim, she wrote, they should follow long-established and evidence-based legal avenues.
The original Jumbo vision
The decision is a major boost for the team behind Glacier Resorts, particularly the project’s founder, Vancouver-based architect Oberto Oberti. A native of Italy and a passionate skier, Oberti has long dreamed of bringing the epic “peak-to-valley” skiing tradition of the Alps to Canada. Jumbo was his first attempt, beginning in 1990. Though it has been stymied for 27 years, Oberti has successfully led two other large resort projects. In the late 1990s he conceived and led the effort to transform a small local ski hill at Golden, B.C. into a major resort with world-class terrain; today it’s known as Kicking Horse Mountain Resort. Like the design for Jumbo, it features a long gondola ride from the base directly to the peak. Farther north, at the village of Valemount, B.C., an even larger greenfield project has sailed through the design, consultation and approval stages and is due to begin construction next summer. It too features long lifts to high, glaciated peaks.
Jumbo, however, has always been nearest to Oberti’s heart. And with good reason: among its many attributes is a vast expanse and variety of alpine terrain unlike any existing Canadian ski area. Its glorious pitches and bowls are currently only experienced by heli-skiers and ski tourers. It features copious snowfall, jaw-dropping scenery, and the potential for year-round skiing, sight-seeing, and hiking. It lies just 34 kilometres west of the existing Panorama Ski Resort near Invermere, B.C., and is less than four hours’ drive from Calgary.
“I’m delighted by the Supreme Court’s decision,” Oberti said in an interview. “I was cautiously optimistic because the B.C. government’s lawyers performed very ably and the hearings went very well. The decision confirms in a final manner that the MDA was issued correctly by the previous minister and is in full force. There is no need for the current minister to go back and do more consultation.” Had it gone the other way, Oberti argues, “It would have meant that one religion could use its beliefs to stop others from engaging in lawful activities. You can’t have this in a democracy.”
Still, the day when skiers will board the resort’s planned gondola, step out at 3,000 metres and swoosh through the Purcell Mountains’ legendary “champagne” powder down the vast rolling slopes of Glacier Dome, the first of the project’s four glaciers to be developed, is still several years away – at best. Major obstacles remain. Ktunaxa Nation Council Chair Kathryn Teneese quickly declared that the Ktunaxa don’t “accept” the ruling, raising the prospect of further obstruction by natives and their non-native allies. Hostile politicians and bureaucrats could deny, slow down or attach unreasonable conditions to the permitting process. Other ski resort operators are likely to continue lobbying against Jumbo. Investors, though long interested, might be spooked by the uncertainties and withhold the minimally required $25-$50 million for first-phase development.
Most uncertain of all is the disposition of B.C.’s current NDP-Green government. In 2015 the previous Liberal regime decreed that the resort’s environmental certificate had expired because the company missed the deadline for commencement of substantial construction. So, despite the Supreme Court ruling, the resort remains at a standstill until and unless the province reverses its position, accepts that substantial construction had begun, reinstates the environmental certificate, and allows the MDA to remain in force. This may require yet more litigation to force the hand of the current government under Premier John Horgan. That could be formidable, for Horgan himself had celebrated the 2015 decision, saying, “This was a project that was not meant to be. Jumbo should remain wild; with any luck, it will.”
In a country where far bigger resource and infrastructure projects are routinely thwarted even after the legal and bureaucratic process has run its course – the cancelled Northern Gateway and Energy East pipeline projects are but the most obvious recent examples – “denial through delay” has become the norm, not the exception. As Oberti has learned through painful experience, the “rule of law” has no force or effect when governments refuse to abide by or enforce it.
27 years in the regulatory maze
When Oberti proposed Jumbo in 1990, B.C. already had a field-proven development framework, its Commercial Alpine Skiing Policy. It had been used for the wildly successful Whistler-Blackcomb ski resort and a number of others. Inexplicably, the Social Credit government of the day launched separate, ad hoc public hearings into Jumbo. Although these resulted in positive recommendations, the subsequent NDP government superseded both processes with its province-wide Commission on Resources and the Environment (CORE). In looking at Jumbo, CORE concluded that tourism, including resort-based tourism, was the highest value for the area. The CORE’s chairman even recommended that the project proceed under the previous policy without a separate environmental assessment. He was ignored, however, and what would normally be a two-year process dragged out for nine.
Although the resort site was not covered by treaty, or part of a reserve, or the subject of aboriginal claims, or even an area of intensive “traditional” use by natives, both of the region’s First Nations, the Shuswap and Ktunaxa, were consulted throughout the process, and their participation was taxpayer-funded. The resort plan was significantly altered and scaled back to accommodate aboriginal and environmental demands – including concessions for two real grizzly bears that were found to use the upper valley. “The Ktunaxa and Shuswap always had the highest respect from us, and we made constant efforts to liaise with and listen to them both,” Oberti recalls. “Governments were sympathetic to their position, and provided them ample opportunity to present their values and religious beliefs.”
The Shuswap, whose single reserve at Invermere sits closer to the Jumbo Valley than any of the Ktunaxa’s several reserves, eventually declared their satisfaction with the consultation process and signed an impacts management and benefits agreement with Glacier Resorts.
Negotiations continued with the Ktunaxa. Though the Grizzly Bear Spirit was mentioned occasionally, it was never portrayed as a deal-breaker. In 2006, the Ktunaxa stated in a letter to the B.C. government that the only unresolved issues were “funding” and “monies”; they made no mention of spiritual values, sacredness or the Spirit. Nor did a 2008 letter rejecting an offer of economic benefits. As late as May and June 2009, the Supreme Court would later note, “the Ktunaxa did not place the sacred nature of the Jumbo Valley on the list of outstanding issues.”
“All indications were that our project and First Nations values could work successfully together,” says Oberti. “We would never have chosen to create a war of religion over a ski resort project.”
But that’s basically what happened after Chris Luke revealed his half-decade old mystical encounter with the Grizzly Spirit Bear. The Ktunaxa declared the negotiations were over and the resort was unacceptable. In 2010, they issued the “Qat’Muk Declaration”, which asserted pre-existing sovereignty over the Jumbo site, proclaimed it a “refuge area”, and ruled out any development. Although many expected this dramatic move to prove fatal for Jumbo, in hindsight, it was a monumental overreach. Expanding their agenda from a negotiation to protect spiritual values to a demand for absolute control over a religious site, one that encompassed a large land area, would prove the undoing of the Ktunaxa legal strategy.
For Oberti and his dwindling band of supporters, it was an outrageous development, enabled by the interminable nature of the regulatory process, which they argued should have come to a conclusion years earlier. “These numerous steps were all public and democratic land use and permitting processes,” says Oberti. “But, one after the other, six or seven governments of all stripes did consultations, consultations, consultations, and the goalposts kept shifting and the project grew smaller at nearly every stage.” As the years dragged on, initially solid public and political support gradually crumbled under relentless attacks from increasingly strident and sometimes menacing opponents. They eventually came to include environmental groups, local NIMBYists (including the local heli-skiing operator), hostile journalists, competing ski areas, and corporate virtue signallers ranging from the Patagonia clothing multinational to Invermere’s Kicking Horse coffee company. The project’s very bigness was turned against it; Oberti came to rue the day he named it “Jumbo”. At times, he says, he felt like he’d been swept away in an avalanche.
After dithering for nine years through the environmental assessment, the province changed the related legislation to place a five-year time limit (with a five-year extension) on the certificate itself. Then it spent eight years processing the master plan application. When it at last signed the MDA in 2012, the province still had not established the Jumbo mountain resort municipality (akin to Whistler and Sun Peaks) that would oversee local issues like zoning, servicing and permitting. The company now had less than two years – until October 12, 2014 – to commence “substantial construction”. Yet the new municipality wasn’t even due to submit its official community plan, a precondition for zoning and typically a precursor to construction, until 2015.
Catch-22, -23, -24…
While the new mountain resort municipality bent over backwards to accommodate the company’s schedule, Glacier Resorts was suddenly faced with what Oberti describes as “a mountain of permit requirements” just to gain site access. Everything down to culverts required its own permit. “The province made things as difficult and confusing as possible,” says Oberti. “They were playing cat-and-mouse with us to appease the opponents.”
In the end, construction began just one month before the deadline. The company managed to excavate and pour foundations for the day lodge and the first chairlift terminal. Nonetheless, the next spring B.C.’s environment minister issued a letter stating that “substantial construction” had not begun. Bizarrely, she reportedly used a definition of substantial construction supplied by the Ktunaxa. Given these Kafkaesque contortions by the state, Oberti is putting it mildly when he says “the province has shown a pattern of injustice towards the project proponent.”
Yet through it all, Oberti not only persisted but maintained his optimism. “The religious issue, based on a belief disclosed 17 years after the start of the process, was really the last stand by opponents to arbitrarily deny ‘social licence’ to the project,” he says.
The Supreme Court heard the Ktunaxa’s appeal last December. Although the then-Liberal B.C. government had done more than its share to strangle the Jumbo project with red tape, it sent a very determined team of lawyers to fight the appeal. The Liberals likely realized that if the Ktunaxa claim was upheld, it would set a precedent that could be used by First Nations to block other developments.
Virtually every intervenor, including the Government of Canada, sided with the Ktunaxa. The Province of Saskatchewan was an exception, complaining that the Ktunaxa’s absolute objection on religious grounds was only revealed close to 20 years after the start of the public review process and after critical land use decisions and approvals. This was noted by all three courts.
Like the lower courts, the Supreme Court did not question the sincerity or legitimacy of Elder Luke’s beliefs, the timing of his revelation, or the minimal practice of Grizzly Bear Spirit worship by the Ktunaxa at large. These issues were not relevant to the court because the case was an administrative review of government decisions, not a trial over aboriginal title or other specific claims. Also, wrote McLachlin, “The Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. This is a novel claim that would extend s. 2(a) beyond its scope and would put deeply held personal beliefs under judicial scrutiny…Adjudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs.” This it would not do; instead the majority found that nothing in the project attacked or undermined the Ktunaxa’s religious beliefs, nor their ability to worship or proclaim their religion.
The minority partial concurrence, written by Mr. Justice Michael Moldaver, read Section 2(a) more expansively. “In many Indigenous religions, land is not only the site of spiritual practices; land itself can be sacred,” he noted. “As such, state action that impacts land can sever the connection to the divine, rendering beliefs and practices devoid of spiritual significance.” But before declaring all of Canada a gigantic pantheistic temple, he noted that the B.C. government had been left with two options: “approve the development or permit the Ktunaxa to veto the development on the basis of their freedom of religion. Granting the Ktunaxa a power to veto development over the land would effectively give them a significant property interest in Qat’muk.” This interest, he wrote, amounted to the power of “to exclude others from developing land that the public in fact owns,” with the result that, “A religious group would therefore be able to regulate the use of a vast expanse of public land so that it conforms to its religious belief.” Accordingly, he also denied this claim.
As for the duty to consult, all nine justices noted the 20-year length and depth of consultation, including the acknowledgement of spiritual values from the outset. “Section 35 guarantees a process, not a particular result,” the decision states. “Where adequate consultation has occurred, a development may proceed without consent.”
Separation of tipi and state
“The Supreme Court’s decision is crystal clear: Canada protects beliefs, but the liberty of others is not to be subjected to anyone else’s beliefs,” Oberti says. “We respect and accommodate them, but we cannot be obliged to follow them. Had the decision gone the other way, our fundamental liberties would have been at the discretion of any religious belief. I don’t think First Nations as a whole should take this as a loss, because it means that one First Nation can’t impose its will on another. It’s good for First Nations that this one didn’t win.”
Tom Flanagan, a constitutional scholar at the University of Calgary who wrote the acclaimed book First Nations, Second Thoughts and has appeared as an expert witness in native land claims cases, says the Ktunaxa decision sets important new limits on the scope of native consultation and religious rights. “Prior decisions put all religion-like utterances on the same footing,” Flanagan said in an interview. “The court is now saying that you can believe whatever you want, and the state can’t interfere with your belief, your right to talk about it, practice it, or proclaim it. But you can’t take away the right of others to use the land. This is parallel to an older jurisprudential distinction between thought and action. That means you’re free to believe and say that vaccinations or blood transfusions are the work of the devil, but you’re not free to deny your children the benefits of being vaccinated or receiving a blood transfusion.”
In this case, the “action” would be preventing a resort from being built on public land with no claim to aboriginal title. “The majority found a principles-based reason to deny the Ktunaxa’s application,” says Flanagan. “Following last summer’s Chippewas of the Thames case over a pipeline in Ontario, this is the Supreme Court’s second decision in a few months that clearly states that the aboriginal right to be consulted does not constitute the right to determine the outcome and veto a project that they don’t like. This was unclear in the past. This signals that governments and companies can move forward with projects if they do the consultations right.”
The positive result in hand, Oberti has called a meeting of Glacier’s Board of Directors, at which he will urge the company to demand that the B.C. government reinstate the MDA. “If the government were amenable and accepted that the permits are substantially intact, we could restart construction next summer,” Oberti says. Realistically, he concedes “there are a lot of technicalities that can be used to delay construction.” Even if that big issue were quickly resolved, a new one looms. Glacier wants to build a new access road because the existing one lies in the path of potential avalanches, but the proposed alignment is opposed by the Ktunaxa, who are expected to demand an archeological study.
Even if Jumbo is ultimately defeated, the Supreme Court decision could be a victory for other projects across Canada. It sets clear legal limits on the constitutional “duty to consult” with First Nations and prevents them from imposing religious beliefs on public land use policies. But it may take years for awareness of the ruling and its legal significance to filter down to governments at all levels, where aboriginal political influence is currently in ascendance.