Members of the Ktunaxa Nation presented their case in front of the nine justices inside the Supreme Court of Canada on Parliament Hill on Thursday

Members of the Ktunaxa Nation presented their case in front of the nine justices inside the Supreme Court of Canada on Parliament Hill on Thursday

Castlegar minister witnesses Ktunaxa appeal to Supreme Court of Canada

The minister of a Castlegar church was in Ottawa on Thursday, Dec. 1 to support the Ktunaxa Nation at a Supreme Court of Canada appeal.

The minister of a Castlegar church was in Ottawa on Thursday, Dec. 1 to support the Ktunaxa Nation as the Supreme Court of Canada heard arguments regarding the Ktunaxa Nation Council’s claims over Qat’muk, also known as Jumbo Valley.

Reverend Greg Powell is minister at the Castlegar United Church, as well as chair of the Kootenay Presbytery of the United Church of Canada, which acted as an intervener in an appeal to the Supreme Court of Canada made by the Ktunaxa Nation Council.

Powell felt it was important for the Kootenay Presbytery to support the Ktunaxa Nation.

“It was important for us to show up because we were invited to show up, and I mean that literally and symbolically,” he said. “The church has a history of participating in colonialism and benefiting from the legacies of colonialism, and we’re trying really hard to move toward a place of reconciliation or at least start a relationship. So when an indigenous nation like the Ktunaxa invite us to participate and take a stand alongside them, then it’s important for us to show up.”

In March 2012, the BC government granted Glacier Resorts Ltd. a Master Development Agreement (MDA), allowing them to build a ski resort in the Jumbo Valley. On Nov. 30, 2012, the Ktunaxa Nation Council filed an application for a judicial review in the BC Supreme Court, seeking to overturn the decision made by the provincial government to grant the MDA. On April 3, 2014, the BC Supreme Court rejected the application for judicial review, and the Ktunaxa Nation Council then appealed the decision in the BC Court of Appeal on May 2, 2014. On Aug. 6, 2015 the appeal was denied and in October 2015, the Ktunaxa Nation Council appealed to the Supreme Court of Canada.

The Ktunaxa Nation Council and Kathryn Teneese, chair of the Ktunaxa Nation Council and the named appellant in the case, argue that Qat’muk is spiritually important to them, and that during consultation they informed the province that “the fate of spiritual beliefs and practices central to Ktunaxa citizens and Ktunaxa spirituality depends on the fate of Qat’muk.” Yet they don’t feel the province took that into account.

“What we were concerned about and what we were challenging, starting from the first order of the judicial review, was that we did not feel that in the decision to approve the Master Development Agreement that the province properly characterized the spiritual information that they were provided,” said Teneese. “We didn’t have any evidence of them taking the information that was provided to them into consideration when they made their decision to approve the Master Development Agreement.”

They further argue that the province’s decision to grant an MDA to Glacier Resorts Ltd. violated their freedom of conscience, as protected under section 2(a) of the Canadian Charter of Rights and Freedoms, and the constitutional protection to the Aboriginal rights of the Aboriginal peoples of Canada, as provided by section 35 of the Constitution Act, 1982.

Glacier Resorts Ltd. disagrees, arguing that the proposed resort would not deny the Ktunaxa people their rights.

Speaking to the News the day after the hearing, Powell said, “The lawyers for the developers and for other interveners who were basically siding with the developers and with the Province of BC, part of their argument is to undermine the spiritual validity and the history of the spiritual practice of the Ktunaxa.”

Asked about this, Glacier Resorts Ltd., responded: “We respect the Ktunaxa and all First Nations beliefs deeply and we have only disagreed with some interpretations of the law around the approval process, nothing else. However, it is fair to say that we do not believe, as claimed under Section 2(a) of the Charter in the SCC last week, that their history or spiritual beliefs are fundamentally denied to them because of this project. There is an important distinction here. Again, the Shuswap Nation, the nation in which our project resides, have been supportive and we [have] successfully come to [an] agreement. We still believe there is a positive way forward with the Ktunaxa.”

On its website, Glacier Resorts Ltd. included the following argument: “The project’s review process began in 1991 and underwent a major Environmental Assessment Act review process that was completed and passed in 2007. Did you know that the Ktunaxa, who were involved in the review process since the beginning, did not bring the notion of ‘spiritual values’ to the table until 2009 when one elder recalled its existence? On this basis, the Ktunaxa have contested the project’s approval in the courts.

Asked about this, Glacier Resorts Ltd. replied, “What we are providing here is context: the Ktunaxa Nation’s current position seems to be that they were not fully consulted. In reality, we were at the table with them and spent a significant amount of time for many years working on their concerns. At that time, discussions centered on environmental management, as those were the issues they brought to our attention. It was only after the EA Act and the Master Plan processes were concluded that the spiritual matter was raised by a single member of the community. Our wish has simply been to have the chance to address concerns and come to a mutually beneficial agreement, but we needed to be given that chance.”

But Teneese says that Qat’muk’s spiritual significance to the Ktunaxa has been an issue since the beginning. “The fact of the matter is that since the project was first brought to our attention, way back in the early ’90s, and I’ve looked at information that we provided, that the issue of spiritual importance of that place was always mentioned. What he’s referring to is the fact that it was only in 2009 that we and the knowledge holder in question felt that it was necessary to provide additional detail and background to what it was that we were referring to when we said that the area is of spiritual importance to the Ktunaxa people.”

Teneese explained that an important aspect of Ktunaxa spirituality is that it is not discussed with outsiders. “In terms of our willingness to share our information what we consider to be very private information with anybody is something that…. It’s the approach that we’ve taken for a long time now, given all of the things that we’ve had to deal with over time. Where we’ve had things like the residential schools with the Catholic Church coming along, telling us that our beliefs were less than and simply not appropriate in the context of moving forward.”

“…So the idea that we’re not talking about that information right at the outset, it’s something that’s not inconsistent with what we’ve done with other matters and other issues, that our business is our business,” continued Teneese, who explained that the Ktunaxa were compelled to discuss their beliefs publicly when it became clear the spiritual significance of Qat’muk hadn’t been taken into account, though discussing them publicly was a transgression against their beliefs in the first place.

A press release sent out by the Kootenay Presbytery expressed the importance of ensuring “that the freedom of religion, as guaranteed in Section 2(a) of the Charter of Rights and Freedoms, is not limited to protecting Christian practices.”

“There’s a risk of defining the freedom of religion section in the Charter narrowly, which then might lead to protecting only certain religions,” explained Powell. “It’s important to us that it doesn’t just protect say Christianity or the Abrahamic faiths, that it is understood widely to protect all forms of faith, especially indigenous spirituality, which have a history of being undermined, and targeted and attacked in the history of Canada.”

Asked if he had any indication of how the court’s likely to rule, Powell said, “No, I really don’t. During lunch afterwards the lawyer for the Ktunaxa really couldn’t speculate either, and he’s got much more experience with the Supreme Court than I have, and he wasn’t sure.”

A call to action for reconciliation

Asked if Kootenay Presbytery’s support contributed toward reconciliation, Teneese said, “I would say so.”

But she also stressed that reconciliation is an ongoing process and a two-way street, and it shouldn’t be up to First Nations to get the ball rolling. “I would suggest and encourage people to be doing some reaching out themselves in terms of wanting to address the issue and informing themselves about things like the Truth and Reconciliation 94 calls to actions. I mean in there, there are some very clear ideas about how that path can be developed together.”