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By Andrea Smith
Windspeaker.com Contributor
The Ktunaxa Nation is recovering today after a crushing loss in the Supreme Court of Canada. The Qat’muk (Jumbo resort) case has been before the courts for decades with the Ktunaxa fighting to preserve a piece of sacred land from being plowed over for a ski resort.
The Supreme Court of Canada yesterday ruled Ktunaxa spiritual belief is not a valid reason to prevent the building of Jumbo Glacier Resort from moving forward.
“I am still very disappointed obviously, and I guess what it says to me is… ‘Where do we as Indigenous people go when we’re looking for protection,” said Kathryn Teneese, chair of Ktunaxa Nation Council.
“Obviously, we’re not being afforded Charter rights the same as everyone else. And it kind of flies in the face of moving forward in a reconciliatory way if we can’t be acknowledged for having beliefs that are different from someone else’s and not be considered when those decisions are being made,” she said.
The case of Qat’muk, the traditional name for the land in the heart of Ktunaxa territory, has been so intense even a film called Jumbo Wild has been made about it. The Ktunaxa Nation believes Qat’muk is the home of the Grizzly Bear spirit. Not only does the spirit of the grizzly bear live there, but there is also scientific evidence which shows it is a corridor the grizzly bear passes through frequently.
The Ktunaxa Nation has been against the resort’s development since it was first proposed in 1991.
Five years ago, the B.C. government gave the resort company the okay to incorporate the Jumbo Valley village/resort, which spurred the Ktunaxa Nation to begin court challenges.
The case, which concluded yesterday was brought before the Supreme Court of Canada Dec. 1 2016. The Ktunaxa Nation included an appeal to the Supreme court based on two sections of Canadian law. A section of the Canadian Charter of Rights and Freedoms which states that every person in Canada is allowed the right to “freedom of conscience and religion” and a clause from Section 35 of the Constitution Act which declares Indigenous people’s rights are to be protected, including the right to traditions.
“The case we brought before the Supreme Court of Canada was unique… There was no precedent for this type of appeal and while we knew the risks, we were willing to take that chance,” said Teneese.
“Through this decision the Ktunaxa Nation has opened the door towards legal protection of sacred places and the recognition that the original peoples of Canada have spiritual beliefs and practices as deserving of protection as those of other Canadians,” she said.
“Regardless of the division on the court on these issues, this was a conversation that needed to happen in Canada and the Ktunaxa Nation is proud to be leader in this critical chapter of Canada’s history,” said Teneese.
What they were disputing was not necessarily whether or not the company should be permitted to build but the theoretical challenge and question as to whether or not the Canadian governmen, and the courts have the obligation to protect lands which are the basis of a spiritual belief.
While the court ruled Indigenous people are entitled to any spiritual belief they wish, the court also ruled it was not the obligation of the court or government to protect the “subjective spiritual meaning of it” so, the belief is the Ktunaxa Nation’s, and not everyone’s. The protection of an territory that a belief is held about, therefore, is not the court’s (or the government’s) obligation.
The entire decision is on the Supreme Court of Canada webpage. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do
This doesn’t mean there won’t be other hoops the builders will have to jump through before they can complete the project, says Teneese, but as far as the Ktunaxa Nation is concerned, they have “exhausted all court avenues.”
Many media outlets reported immediately after the ruling yesterday, that the way forward on construction was now opened, which is not true, said Teneese, but it means the building company still won out over Indigenous rights.
Teneese and the Ktunaxa Nation will continue work they were already embarking on, said Teneese.
This includes a stewardship plan for the area, and a collaborative effort with other Indigenous groups to look at how better to protect their territories, especially sacred parts of the land.
“I’d like to say, yesterday when we heard from the Supreme Court, basically what we were told is that some of the gains we’ve made in court over the years weren’t taken into consideration, and we were very deeply disappointed that the court made no reference whatsoever to the UN Declaration of Rights of Indigenous,” said Teneese.