The Ktunaxa Nation Council is working with its legal team to determine how a landmark Supreme Court decision last week will affect its appeal against the Jumbo Glacier Resort development west of Invermere.
On Thursday, June 26, the Supreme Court of Canada recognized, for the first time in Canada, aboriginal title to a specific tract of land. The decision essentially makes it easier for a First Nation to establish title over lands that are culturally and spiritually significant for its people.
The case was brought forward to the Supreme Court of Canada by the Tsilhqot’in of central British Columbia after the British Columbia Court of Appeal ruled the Tsilhqot’in had only aboriginal title in small select spots of their traditional territory.
Last week’s decision granted Aboriginal title to the Tsilhqot’in people to approximately 2,000 square kilometres of land in the heart of Tsilhqot’in traditional territory, but not on reserve.
“We will no longer be an afterthought when significant developments that will have major impacts on our cultural and spiritual ways of life are proposed,” said Kathryn Teneese, chair of the Ktunaxa Nation Council.
The Ktunaxa are currently locked in legal proceedings with the B.C. government over the province’s decision to approve the development of Jumbo Glacier Resort in Ktunaxa traditional territory 55 kilometres west of Invermere.
To the Ktunaxa, Qat’muk has great spiritual significance as the home of the grizzly bear spirit.
In April, the B.C. Supreme Court found that the province had adequately consulted with the Ktunaxa prior to approving the four-season resort in 2012. However, the Ktunaxa feel the decision does not respect their sacred relationship with the area they know as Qat’muk, and filed an appeal in May.
Court dates have not yet been set for that appeal, Teneese said, but the Tsilhqot’in decision may affect the Ktunaxa’s case.
“Our legal counsel is doing a thorough review of the decision and looking to see if there are areas from the decision that might be helpful in our way forward. That work is underway right now,” she said.
Lawyers are working “to make reference in the appeal to a Supreme Court decision and hopefully to point out that what the court has decided in a unanimous decision is applicable in our instance.”
Meanwhile, the Tsilhqot’in decision will have an impact for First Nations in B.C., including the Ktunaxa, that are currently in treaty negotiations with the provincial and federal governments.
“We hope that it will cause both Canada and B.C. to look at their existing mandates and come to the table prepared to reach an agreement,” said Teneese. “We feel that all of the information we have been bringing forward and the positions that we have taken in our discussions with government have always been based on the same circumstances and the same understandings as the Tsilhqot’in brought forward.”
The Tsilhqot’in nation is located west of Williams Lake, in the B.C. Interior, with a population of about 3,000.
The legal case dates back decades, to a dispute over logging rights granted where Tsilhqot’in maintained traplines. Millions of dollars later, the high court has recognized aboriginal title over 1,750 square kilometres of territory.
Teneese said the Tsilhqot’in were standing firm on an issue that is relevant for First Nations across B.C.
“We have always been in strong support of what the Tsilhqot’in are doing, feeling that they were bringing forward an issue that is shared across the province by those Nations that have not concluded arrangements, either in treaty or otherwise, with the province of B.C.
“We want to thank and applaud the Tsilhqot’in people for sticking with it as long as they have.”
Teneese wanted to point out to the Ktunaxa’s neighbours that the decision provides clarity for treaty negotiations.
“People shouldn’t be fearful of this. In fact, I think it provides some greater certainty and it’s going to help frame ongoing discussions between ourselves and our neighbours. It’s not something that is a stick, it’s a tool that we should be looking to that’s going to help us try to crystallize how things should be, and we can get rid of some unfinished business.”
The Tsilhqot’in decision places a greater burden on governments to justify economic development on aboriginal land. Title, however, is not absolute. Economic development can still go ahead on titled land without consent in cases where development is pressing, substantial and meets the Crown’s fiduciary duty, the high court ruled.
With files from Canadian Press