Ktunaxa make Qat’muk case before Supreme Court of Canada

First nation hopeful they’ll at least ‘raise the bar’ at SCOC Qat’muk hearing

  • Dec. 7, 2016 11:00 a.m.

The Ktunaxa Nation argued its case in the Supreme Court of Canada that a proposed ski resort in the Jumbo Valley

Trevor Crawley and Barry Coulter

It only an hour in front of the Supreme Court of Canada for the Ktunaxa Nation to argue the spiritual significance of Qat’muk — the area known as Jumbo Glacier Valley.

On Thursday, Dec. 1, the highest court in the country in Ottawa heard the legal challenge from the First Nation, taking issue with government approval of a ski resort in Jumbo Valley, near Invermere.

The Ktunaxa are arguing their Charter right of religious freedom over disputed land that carries significant spiritual importance.

“We were appearing in front of the Supreme Court, all nine judges,” Kathryn Teneese, Ktunaxa Nation Council Chair, told the Townsman. “So there was the Supreme Court justice and she was flanked by the other eight justices.”

The Ktunaxa argue that the approval of the resort, on land that known as Qat’muk and is the home to the Grizzly Bear spirit, infringes on their right to freedom of religion.

Both the B.C. Supreme Court and the Court of Appeal sided with the Province in previous rulings.

The Ktunaxa, represented by Peter Grant and Associates appeared first in Thursday’s session.

“We began with a legal presentation from our legal counsel — he had an hour to present,” Teneese said. “During that hour, he was also asked questions and clarifications from the judges. Once he did that, we had a number of intervenors who intervened on our behalf, so they had five minutes to deliver a quick message.

“Then the province and the proponent also had an hour, and the intervenors on their behalf — there were a few in support of the position they were taking — they did that.

“Then another member of our legal team had five minutes to reply and wrap up, and then that was it.”

The Ktunaxa state that the Grizzly Bear Spirit is a unique and indispensable source of  collective as well as individual guidance, strength, and protection, and a necessary part of many Ktunaxa spiritual practices and beliefs. Qat’muk’s spiritual importance is deeply connected to its biological significance for living grizzly bears now and in the future.  Qat’muk is also vital to local wildlife populations and biodiversity and must be protected, the Ktunaxa argue.

The case is in many ways precedent setting.

“We think that the question that was before them is really going to be challenging,” Teneese said. “It’s probably the first time that any First Nations has brought forward the question of Charter protection along with a Section 35 constitutional protection of an issue that was being argued in front of them.”

That’s why Teneese thinks the number of intervenors come forward, both in support and in opposition.

“I think the fact that we had as many as we did supports the view that this will be a very important decision that comes out of this case.”

A number of Ktunaxa travelled to Ottawa for the hearing. Teneese said it wasn’t a large delegation, “but we had a good cross-section of both young people and older knowledge-holders that were able to attend. I think that was very important for us, to be able to afford the opportunity to witness this. It’s something of key importance to us as the Ktunaxa Nation.

Teneese said the Nation is hopeful that they’ll be able to at least “raise the bar.”

“If we’re successful, obviously we would have done that. But I think the fact that we’ve even brought forward the argument, and had a regional level at the Supreme Court of Canada, is an important activity in and of itself.

“And we’re certainly happy that we’ve had the kind of support we’ve had, both locally and across the country.”

List of Intervenors

• Attorney General of Canada;

• the Attorney General for Saskatchewan;

• the Canadian Muslim Lawyers Association;

• the South Asian Legal Clinic of Ontario and Kootenay Presbytery (United Church of Canada) (jointly);

• the Evangelical Fellowship of Canada and Christian Legal Fellowship (jointly);

• the Alberta Muslim Public Affairs Council;

• the British Columbia Civil Liberties Association;

• the Council of the Passamaquoddy Nation at Schoodic;

• the Canadian Chamber of Commerce;

• the Shibogama First Nations Council;

• the Central Coast Indigenous Resource Alliance;

• Amnesty International Canada;

• the Te’mexw Treaty Association;

• the Katzie First Nation and the West Moberly First Nations and Prophet River First Nation (jointly).

From the SCOC website

“IT IS HEREBY FURTHER ORDERED THAT:

The Attorney General of Canada; the Attorney General for Saskatchewan; the Te’mexw Treaty Association; the Shibogama First Nations Council; the Canadian Chamber of Commerce; the British Columbia Civil Liberties Association and Council of the Passamaquoddy Nation at Schoodic are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal.”

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