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B.C. First Nation officials see Jumbo Glacier ski resort ruling as failing of top court

The Jumbo Valley, the planned site of the ski resort.

Nathan VanderKlippe/The Globe and Mail

Hours after the Supreme Court of Canada ruled against the Ktunaxa Nation Council, the backdrop behind Kathryn Teneese as she spoke with reporters declared the Jumbo Glacier Resort as "a Jumbo mistake."

And although the Supreme Court ruled the ski resort could be built on land sacred to the Ktunaxa, Ms. Teneese, the council's chair, vowed to do what she could to protect it.

"That's the task that was given to us by the creator and no one else can take that away from us," she said on Thursday. "We will move forward, trying to determine what our next steps will be."

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Read more: B.C. ski resort can be built on land held sacred by Indigenous: Supreme Court

What happens next is unclear. Little construction on the resort has been completed, and the company leading the project and the B.C. government are engaged in a separate court proceeding over an environmental-assessment certificate.

A lawyer for the Ktunaxa expressed surprise at the Supreme Court of Canada ruling and said the judges appeared to be "moving backward" on Indigenous issues.

Ms. Teneese called on the federal and provincial governments, which have expressed support for the United Nations Declaration on the Rights of Indigenous Peoples, to work with the Ktunaxa to find alternative solutions.

She said the ruling sent the message that the courts believe Indigenous culture, history and spirituality – all of which are linked to land – are not deserving of legal protection.

"We shouldn't be put into a place that causes us to be treated as though we're something different and as though we're less than," she said. "Unfortunately, when I first heard the decision, that's how I felt."

Peter Grant, one of the lawyers representing the Ktunaxa, said Indigenous spirituality has a right to legal protection.

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Mr. Grant, who has practised aboriginal law for more than four decades, questioned why the Supreme Court ruling did not mention the UN Declaration on the Rights of Indigenous Peoples.

"I do not want to mince words. It is a tragedy that this judgment will be the last judgment on aboriginal issues of this Chief Justice, who's had a long legacy," he said, referring to Chief Justice Beverley McLachlin, retiring in December.

Glacier Resorts Ltd. said it welcomed the ruling. "The project can now move forward," Arnold Armstrong, chairman of the company's board, wrote in a statement.

"We seek to work in a co-operative spirit and believe that the common good and the beauty of the project will ultimately bring people together."

Gregory Tucker, the lawyer representing Glacier Resorts in the case, said in an interview that the company and the province are currently involved in a separate proceeding in B.C. Supreme Court.

British Columbia's environment minister in 2015 determined the project had not been substantially started and a new environmental-assessment certificate would have to be obtained.

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Glacier Resorts has filed for a judicial review of that decision.

Mr. Tucker said Glacier believes it did everything it could from a construction standpoint. He said construction was hampered by an extremely slow process for obtaining building permits.

The B.C. Supreme Court case had been on holding pending the Supreme Court of Canada ruling and will now proceed. Mr. Tucker said he could not offer a time frame for when the judicial review will go ahead.

Doug Donaldson, B.C.'s Minister of Forests and Lands, said in an interview the province is reviewing the Supreme Court of Canada ruling and figuring out its next steps.

He noted the project remains in limbo ahead of the B.C. Supreme Court proceeding.

"We have some options but we are going to wait for the judicial review," he said.

When asked what other steps the Ktunaxa will pursue, Ms. Teneese said the Ktunaxa are in the treaty negotiation process and are having discussions around the protection of some lands.

Robert Phillips, a member of the First Nations Summit executive who joined Ms. Teneese and Mr. Grant at the news conference, said the case speaks to why the Supreme Court of Canada needs an Indigenous judge.

"When it comes to the Supreme Court of Canada, they may have got it wrong. But now is an opportunity to learn," he said.

Josh Paterson, executive director of the BC Civil Liberties Association, which intervened in the Supreme Court of Canada case, said he was surprised and disappointed by the ruling.

He noted it came after a series of important wins at the Supreme Court of Canada in Indigenous cases, including the Tsilhqot'in Nation ruling in 2014 over land rights and title.

"I think it is a setback for Indigenous rights in Canada," he said in an interview.

With a report from Justine Hunter

Timeline of Jumbo Glacier

The Jumbo Glacier Resort has been in development since the early 1990s. Here is a timeline of the project:

1991: Vancouver developer Oberto Oberti and his company, Pheidias Project Management Corp., submit a formal proposal for a year-round skiiing resort in B.C.'s East Kootenay region, about 250 kilometres west of Calgary. The project is backed by Tokyo-based Kenchiku Shiryo Kenkyusha (KSK).

1991-1994: The project stalls while the province completes a land-use plan for the region, which is released in 1994. The plan restricts development in the area but carves out a specific approval for the Jumbo resort. At the same time, opposition to the resort grows as environmentalists argue the project would imperil a fragile ecosystem.

1995-2004: The province's environmental-assessment office spends nine years studying the project and holding public consultations. The office eventually receives more than 1,000 letters, most in opposition. Meanwhile, the developer reduces the resort's proposed size and removes lift access to a popular backcountry hiking and camping area.

The Ktunaxa/Kinbasket Tribal Council, the Shuswap Indian Band and the Columbia Lake Indian Band participate in the review. The Ktunaxa oppose the project, warning it would hurt the spiritual home of grizzly bears.

2004: Jumbo receives an environmental-assessment certificate, though the provincial government says the resort's future is ultimately up to the local government – the Regional District of the East Kootenay. The Shuswap Indian Band breaks with the Ktunaxa/Kinbasket Tribal Council and announces its support for the project, later signing a benefits agreement with the developer.

The environmental-assessment office's report concludes the development adequately consulted with First Nations.

2008: Protests against the project escalate. Opponents stage an eight-week road blockade during the summer. Critics include singer Bruce Cockburn and former NHL player Scott Niedermayer.

2012: The B.C. government grants final approval for the project and incorporates the community of Jumbo, appointing a mayor and council. The Ktunaxa Nation files an application for judicial review.

2014: A B.C. Supreme Court judge dismisses the Ktunaxa's case; the decision is later upheld by the B.C. Court of Appeal.

2015: B.C.'s environment minister declares the project has "not substantially started" and the resort's environmental certificate expires. The developer files an application in B.C. Supreme Court for judicial review of that decision, which has not yet been heard.

Nov. 2, 2017: The Supreme Court of Canada dismisses the Ktunaxa's case.

Sources: The Globe and Mail, The Canadian Press, Jumbo Glacier Resort

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