bc supreme court judgement, re ktunaxa nation v. british columbia (forests, lands and natural...

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations),

2014 BCSC 568 Date: 20140403

Docket: S128500 Registry: Vancouver

Between:

Ktunaxa Nation Council and Kathryn Teneese, on their own behalf and on behalf of all citizens of the Ktunaxa Nation

Petitioners

And

Minister of Forests, Lands and Natural Resource Operations and Glacier Resorts Ltd.

Respondents

Before: The Honourable Mr. Justice Savage

Reasons for Judgment

Counsel for the Petitioners: P.R.A. Grant J. Huberman

M.L. Ross and K. Williams

Counsel for Minister of Forests, Lands and Natural Resource Operations:

P.G. Foy, QC M.S. Kerwin and

A.K. Cousins

Counsel for Respondent Glacier Resorts Ltd.:

G. Tucker and P. Sheppard

Place and Date of Trial: Vancouver, B.C. January 6-10, 2014

January 13-17, 2014

Place and Date of Judgment: Vancouver, B.C. April 3, 2014

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations)

Table of Contents

ACRONYM KEY ........................................................................................................ 4

I. Introduction ....................................................................................................... 5

II. Orders Sought ................................................................................................... 9

III. Issues............................................................................................................... 11

1. Is extrinsic expert evidence admissible? ....................................................... 11

2. Does the MDA violate s.35 of the Constitution Act, 1982? ............................ 12

3. Does the MDA violate s. 2(a) of the Charter? ................................................ 12

IV. Background ..................................................................................................... 12

A. The Aboriginal Groups .................................................................................. 12

B. Resort Development Policy ........................................................................... 13

C. Chronology of Events .................................................................................... 13

D. Discussion of Relevant Events ...................................................................... 14

1. Initial Planning Processes .......................................................................... 14

(i) 1991-1993: CASP Review ..................................................................... 14

(ii) 1993-1994: CORE Review ................................................................. 15

(iii) 1995: Interim Agreement .................................................................... 16

2. 1995-2004: Environmental Assessment .................................................... 16

3. 2005-2007: Master Plan Review ................................................................ 20

(i) Gap Analysis ............................................................................................. 21

(ii) Accommodation is a possibility ........................................................... 22

(iii) MP Approval ............................................................................................ 23

4. 2007-2009: Further Ktunaxa Consultation ................................................. 24

(i) Accommodation is offered ...................................................................... 24

(ii) Sacred Site - No accommodation is possible ..................................... 26

5. 2010-2012: MDA Approval ........................................................................ 27

(i) Consultation/Accommodation Summary ................................................ 27

(ii) Qat’muk Declaration ........................................................................... 28

(iii) Further Discussion .............................................................................. 29

E. The “no middle ground” position .................................................................... 29

V. Evidentiary Issues .......................................................................................... 31

A. Law: The admissibility of extrinsic evidence on judicial review ...................... 31

(i) The general rule on judicial review ............................................................ 31


(ii) Judicial review of the duty to consult and accommodate ....................... 32

(iii) Judicial review where the Charter is implicated ..................................... 34

B. Analysis: Should I admit the expert reports tendered? .................................. 38

1. The Walker Report..................................................................................... 40

2. The Shaffer Report .................................................................................... 44

3. The Proctor Report .................................................................................... 44

4. The Brealey Report.................................................................................... 47

5. The Candler Report ................................................................................... 48

VI. The Duty to Consult and Accommodate ....................................................... 48

Law ....................................................................................................................... 48

1. The Interpretation of Section 35(1) ............................................................ 48

2. The Honour of the Crown .......................................................................... 51

3. The Duty to Consult and Accommodate .................................................... 51

4. The Scope of the Duty ............................................................................... 52

5. The Standard of Review ............................................................................ 54

6. Process v. Outcomes ................................................................................. 55

Analysis ................................................................................................................ 57

1. Unchallenged earlier regulatory approvals ................................................ 57

2. MDA approval ............................................................................................ 62

4. Was the consultation process reasonable? ............................................... 65

5. Was reasonable accommodation offered? ................................................ 68

VII. Section 2(a) of the Charter ............................................................................. 74

Law ....................................................................................................................... 75

1. Relevant Charter Sections ......................................................................... 75

2. Principles of Charter Interpretation ............................................................ 75

3. The Preamble ............................................................................................ 76

4. Section 2(a) Jurisprudence ........................................................................ 77

5. Charter Review of Discretionary Administrative Decisions ........................ 79

Analysis ................................................................................................................ 80

1. Must the decision-maker specifically reference the Charter right? ............ 80

2. Does the MDA infringe s. 2(a) of the Charter? ........................................... 82

3. Does the MDA reflect a reasonable balancing? ......................................... 88

VIII. Summary ......................................................................................................... 93

IX. Order ................................................................................................................ 94


SCHEDULE “A” ...................................................................................................... 95

SCHEDULE “B” ...................................................................................................... 97

SCHEDULE “C” .................................................................................................... 101

SCHEDULE “D” .................................................................................................... 104

SCHEDULE “E” .................................................................................................... 115

SCHEDULE “F” .................................................................................................... 117

ACRONYM KEY

ASR = All Seasons Resort

CASP = Commercial Alpine Ski Policy

CLIB = Columbia Lake Indian Band

CORE = Commission on Resources and Environment

CRA = Controlled Recreation Area

EAC = Environmental Assessment Certificate

EAO = Environmental Assessment Office

IMBA = Impact Management and Benefits Agreement

KBLUP = East Kootenay and West Kootenay-Boundary CORE Land Use Plan

KKTC = Ktunaxa/Kinbasket Tribal Council

KNC = Ktunaxa Nation Council

MDA = Master Development Agreement

MP = Master Plan

SIB = Shuswap Indian Band

WMA = Wildlife Management Area


I. Introduction

[1] This judicial review concerns a proposed year round ski resort on Crown land

near Invermere, BC (the “Proposed Resort”). The petitioner, the Ktunaxa Nation (the

“Ktunaxa”), challenges the Master Development Agreement (the “MDA”) for the

Proposed Resort which was signed on March 20, 2012, by the two respondents,

Glacier Resorts Ltd. (“Glacier”) and the Minister of Forests, Lands and Natural

Resource Operations (the “Minister”: I also use the term “Minister” throughout these

reasons to refer to the government ministry responsible for the disposition of tenures

on Crown land for ski resort development at the relevant time, although I recognize

the responsible ministry or ministry name has changed over the time period relevant

to the Proposed Resort).

[2] The Ktunaxa are an Aboriginal people under s. 35 of the Constitution Act,

1982. They have inhabited the Columbia and Kootenay River valleys and parts of

the Purcell, Selkirk and Rocky Mountains since before contact with Europeans. Their

traditional territory includes parts of southeastern British Columbia, southwestern

Alberta, Montana, Washington, and Idaho. The Ktunaxa do not seek a finding on the

strength of their claim to aboriginal title in these proceedings.

[3] The Proposed Resort is to be located in the Upper Jumbo Valley, at the foot

of Jumbo Mountain and Jumbo Glacier. It is 55 km west of Invermere, 36 km west of

the existing Panorama ski resort, and north of the 202,709 hectare Purcell

Wilderness Conservancy, which was established in 1974 and expanded in 1995.

The Proposed Resort will have lift serviced access to several nearby glaciers at an

elevation up to 3,400 meters in a Controlled Recreation Area (“CRA”) of

approximately 6,000 hectares and will provide winter and summer skiing. Access to

the Proposed Resort will be along an existing forest service road. The Proposed

Resort’s base area will be located at a previously cleared but now abandoned saw

mill site.

[4] The development process began in 1991 when Glacier submitted a formal

proposal to the Minister in accordance with what was then the Commercial Alpine


Ski Policy (“CASP”). Following a public input period and call for proposals, Glacier

was granted sole proponent status in 1993.

[5] Consideration of the Proposed Resort under CASP was initially deferred

pending the completion of land-use planning for the Kootenay region by the

Commission on Resources and Environment (“CORE”). Although a broader land-use

planning process, the CORE review did specifically consider the Proposed Resort

and found it to be an acceptable land use for the Upper Jumbo Creek Valley.

Following this process, Glacier entered an Interim Agreement with the Minister

which, among other things, required Glacier to obtain an Environmental Assessment

Certificate (“EAC”) for the Proposed Resort.

[6] The environmental assessment process began in July 1995, involved review

under two successive pieces of environmental assessment legislation, and

culminated in an EAC being issued for the Proposed Resort in October 2004. The

EAC was renewed in 2009 for five years.

[7] The initial EAC was challenged by judicial review but upheld in both this Court

(R.K. Heli-Ski Panorama v. Glassman et al, 2005 BCSC 1622 ) and the Court of

Appeal (R.K. Heli-Ski Panorama Inc. v. Glassman, 2007 BCCA 9). In the appeal

decision, Smith J.A. observes at para. 1:

[1] It has been sixteen years since [Glacier] set out to build a year-round ski resort on Crown land in the Jumbo Valley in southeastern British Columbia’s Purcell Mountains. As the judge below trenchantly observed, Glacier’s plans have “ground along at a somewhat glacial pace.” For the first fourteen of those sixteen years, the project was caught up in administrative procedures designed by the provincial government to elicit the views of the general public, First Nations, and private interests and to ensure that the project was compatible with land-use, environmental, economic, social, heritage, and health values. Then, on October 12, 2004, the Ministers of Sustainable Resource Management, of Small Business and Economic Development, and of Water, Land and Air Protection … issued an environmental assessment certificate to Glacier pursuant to the Environmental Assessment Act, S.B.C. 2002, c. 43 …, which entitled it to go forward with the project, albeit subject to a number of conditions and to obtaining further necessary approvals.


[8] In December 2005, Glacier submitted a draft Master Plan (“MP”) for the

Proposed Resort to the Minister for consideration under the successor to CASP, the

All Seasons Resort Policy (“ASR Policy”). The MP was approved in 2007. The MP is

a comprehensive document covering such diverse subjects as a Geotechnical

Hazard Assessment, Wildlife Resources and Proposed Mitigation Measures, Erosion

and Sediment Control Plan, Solid Waste Management Plan, Grizzly Bear

Management Plan, Terms of Reference for Environmental Monitoring, Infrastructure

Component descriptions, Socio Economic Analysis, and First Nations. The MP runs

to 13 volumes. The index alone is 21 pages in length.

[9] The next stage, approval of the MDA, was delayed from 2009 to 2012 while

the Minister sought agreement with the Ktunaxa over matters described herein. The

eventual signing of the MDA in March 2012 represents the final approval that Glacier

needs to begin the planned three-phase development of the Proposed Resort.

[10] Glacier says that in the 20 years from 1991 to the approval of the MDA in

2012, it went to extraordinary lengths to satisfy government, First Nations, and

environmental concerns and that the plan for the Proposed Resort has been

modified in many ways to take these concerns into account. Glacier further says it

should be entitled to rely on these various regulatory processes where the nature of

the Proposed Resort was well known, well described, and, with numerous

amendments and modifications, was approved at each stage.

[11] The myriad of events that occurred since Glacier first submitted a proposal in

1991 form the necessary context within which I must assess the Ktunaxa’s claims in

this petition.

[12] The Ktunaxa ask me to find that the MDA violates two of their constitutionally

protected rights: (1) the duty to consult and accommodate aboriginal peoples under

s. 35 of the Constitution Act, 1982, and (2) their right to freedom of religion under

s. 2(a) of the Canadian Charter of Rights and Freedoms (the “Charter”).


[13] The Ktunaxa specifically submit that the Minister failed to fulfil the duty to

consult in respect of the Ktunaxa’s aboriginal right to “exercise a spiritual practice

which by its nature requires the protection of a sacred site”. The existence and

scope of the duty to consult is not disputed.

[14] The two constitutional arguments centre on the Ktunaxa’s claimed

infringement of a very particular aspect of their culture and belief systems. The

Ktunaxa say that the Proposed Resort lies at the heart of a sacred area of

paramount spiritual importance within their claimed traditional territory. That area is

called Qat’muk. The Ktunaxa say that Qat’muk is the Grizzly Bear Spirit’s home or

territory.

[15] The Ktunaxa say that Qat’muk includes the entire Toby-Jumbo watershed

and the uppermost parts of the South Fork Glacier Creek, Horsethief Creek, and

Farnham Creek watersheds. The general boundaries of Qat’muk are described in

many different ways in the material before me. The Minister provided the court with

eight pages of references in its materials illustrating these differing descriptions.

[16] Within Qat’muk, the Ktunaxa identify a “Refuge Area” of approximately 5,915

hectares in the upper Jumbo Creek valley and a “Buffer Area” of approximately

8,799 hectares consisting of the remainder of the Jumbo Creek watershed. The

Proposed Resort will cover about 50% of the Refuge Area and the pre-existing road

that will be used to access the Proposed Resort is within the Buffer Area.

[17] The Ktunaxa say that to allow the Proposed Resort in Qat’muk would

desecrate this sacred site and cause the Grizzly Bear Spirit to leave. If the Grizzly

Bear Spirit leaves Qat’muk, the Ktunaxa say they will no longer be able to receive

physical or spiritual assistance and guidance from that spirit. Their rituals and songs

about the Grizzly Bear Spirit will lose all meaning and efficacy. The Ktunaxa say this

will have a profound negative impact on their identity and culture.

[18] In particular, the Ktunaxa assert it is the permanent overnight human

accommodation that will come with the Proposed Resort which will cause the Grizzly


Bear Spirit to leave Qat’muk. The Ktunaxa first asserted that this specific aspect of

the Proposed Report rendered it fundamentally inimical to any possible

accommodation in 2009.

[19] There have been and are currently other human activities in Qat’muk, and to

a lesser extent in the Refuge and Buffer Areas. There is an extant heli-skiing

operation in the Jumbo valley and the existing Panorama ski resort lies in the lower

reaches of the Toby watershed. The Proposed Resort is to be located on an old

sawmill site within the Refuge Area, which was operational until World War II. There

is an abandoned mine along the forestry access road at the base of the Buffer Area.

Much of the Toby-Jumbo watershed has been previously logged. The watershed is

also used for hunting, including grizzly bear hunting, and recreational hiking.

[20] Another Aboriginal people, the Shuswap Indian Band (“SIB”), also claim the

area described as Qat’muk to be within their traditional territory. The SIB has

supported the Proposed Resort since 2004. They assert that the Kinbasket People

(represented by the SIB) are the Aboriginal people most closely located to the

Proposed Resort area and to whom a duty to consult is owed. Through the SIB’s

business entity, the Kinbasket Development Corporation, they entered into a

benefits agreement with Glacier in respect of the Proposed Resort.

II. Orders Sought

[21] The Ktunaxa seek the following orders to remedy the asserted infringement of

their constitutionally protected rights:

1. A declaration that Qat’muk is sacred to the Ktunaxa;

2. A declaration that the Proposed Resort is incompatible with Qat’muk’s

sacredness and so, if built and operated, will desecrate Qat’muk;

3. A declaration that the Proposed Resort will irreparably and

significantly adversely affect the Ktunaxa people’s traditional religious

practices involving grizzly bears and Grizzly Bear Spirit;


4. A declaration that the Ktunaxa have a strong prima facie claim that

their traditional religious activities involving grizzly bears and Grizzly

Bear Spirit constitute a practice integral to their distinctive culture and

thus an existing Aboriginal right protected by s. 35(1) of the

Constitution Act, 1982;

5. A declaration that the Minister in approving the MDA acted contrary to

the protective purpose of the duty to consult and accommodate the

honour of the Crown and the reconciliation purpose of s. 35;

6. A declaration that the Ktunaxa people’s freedom to learn, engage in,

teach and transmit to future generations their traditional religious

beliefs and practices involving grizzly bears and Grizzly Bear Spirit is

a fundamental freedom guaranteed by s. 2(a) of the Charter;

7. A declaration that the Minister, in approving the MDA unreasonably

and thus unjustifiably, violated the Ktunaxa people’s freedom of

religion;

8. An order setting aside the Minister’s March 20, 2012 decision to

approve the MDA;

9. An interim injunction restricting any steps to be taken in the

development of the Proposed Resort under the MDA until the

conclusion of the hearing of this matter;

10. A permanent injunction prohibiting development in the Qat’muk area,

except as set out in the Qat’muk Declaration;

11. An order sealing sacred and secret information of the Ktunaxa in

portions of certain of the affidavits;


III. Issues

[22] The issues to be decided include the admissibility of extrinsic expert evidence

on judicial review and whether the MDA should be set aside on either of the two

asserted constitutional grounds.

1. Is extrinsic expert evidence admissible?

[23] The Minister and Glacier assert that some expert evidence submitted by the

Ktunaxa is inadmissible. The reports in issue were not before the Minister when the

MDA was approved in March 2012. The five reports objected to are:

a) The report of Dr. Michael Proctor entitled “Consequences to the Purcell Mt Grizzly Bear from Proposed Jumbo Glacier Resort”, dated November 2012.

b) The report of Dr. Deward Walker entitled “The Significance of Qat’muk in Ktunaxa Religious Belief and Practice and the Potential Impacts of the Proposed Jumbo Glacier Ski Report”, dated November 9, 2012.

c) The report of Dr. Craig Chandler entitled “Report on the Nature and Significance of Ktunaxa Interests in the Qat’muk Area as Reflected in Existing Ethnographic Sources”, dated November 26, 2012.

d) The report of Dr. Marvin Shaffer, entitled “An Assessment of the Economic Benefits of the Proposed Jumbo Glacier Resort Project”, dated November 2012.

e) The report of Dr. Kenneth Brealey entitled “Historical Geography of Ktunaxa Use, Occupancy and Continuity of Qat’muk”, dated November 28, 2012.

[24] I must therefore determine whether any or all of these reports are admissible.

[25] Although this issue is preliminary, in the interests of hearing economy the

Ktunaxa first presented their arguments on the merits and the Minister and Glacier

responded, including their objections to the admissibility of the reports at that time.

The Ktunaxa then replied orally on the merits of the petition and filed with the court a

41 page response on the admissibility argument late in the hearing.


2. Does the MDA violate s.35 of the Constitution Act, 1982?

[26] The Ktunaxa frame this issue as:

Was the Minister’s decision to approve the MDA on March 20, 2012 a

violation of the Crown’s constitutional obligation to uphold the honour of the

Crown in its dealings with the Ktunaxa?

[27] Although the Ktunaxa frame the question in this manner, the specific

aboriginal right at issue here, as described by the Ktunaxa, is to “exercise a spiritual

practice which by its nature requires the protection of a sacred site” and the

constitutional obligation is the duty to consult and accommodate.

3. Does the MDA violate s. 2(a) of the Charter?

[28] The Ktunaxa frame this issue as:

Was the Minister’s decision to approve the MDA for a ski resort in the heart of

Qat’muk a violation of the Ktunaxa’s Right to Freedom of Religion under

Section 2(a) of the Canadian Charter of Rights and Freedoms?

IV. Background

[29] I will now consider the factual background that provides the requisite context

for my determination of both the preliminary and substantive issues.

A. The Aboriginal Groups

[30] As stated in the introduction, the SIB supports the Proposed Resort while the

Ktunaxa oppose it. Both claim the Proposed Resort is within their traditional territory.

[31] During the earlier stages of the regulatory process for the Proposed Resort,

however, both the Ktunaxa and the SIB were represented by the Ktunaxa/Kinbasket

Tribal Council (“KKTC”). In or about fall 2005, the SIB withdrew from the KKTC and

joined the Shuswap Nation Tribal Council. The Ktunaxa Nation Council (“KNC”) was

subsequently formed to represent the four Ktunaxa communities in Canada:

Akisq’nuk (Columbia Lake Indian Band - “CLIB”), Yaqan nu?kiy (Lower Kootenay


Indian Band), Aq’am (St. Mary’s Indian Band) and Akink’umlasnuqli?it (Tobacco

Plains Indian Band).

[32] Attached and marked as Schedule “A” is correspondence dated June 30,

2004, between the SIB and the KKTC showing the Kinbasket People’s position with

respect to the Proposed Resort and, specifically, that they are not prepared to

support the KKTC’s position. The letter also states the SIB’s belief that the Kinbasket

are the Aboriginal people in closest proximity to the Proposed Resort and that the

SIB approved the signing of a letter of intent for the Kinbasket Development

Corporation to participate in any development opportunity the Proposed Resort

presents to the SIB.

[33] Although sharing the same acronym, the KKTC is a separate and distinct

entity from the Ktunaxa Kinbasket Treaty Council, which was created in the early

1990s to negotiate a treaty with the governments of Canada and British Columbia.

The Ktunaxa Kinbasket Treaty Council still represents the SIB and the four Ktunaxa

communities that comprise the KNC at the treaty negotiation table.

B. Resort Development Policy

[34] The process for developing an all season resort in British Columbia is

described in the ASR Policy, the successor to CASP. The ASR Policy is intended to

clarify the exercise of Crown decision-making for land dispositions for resorts,

originally just ski resorts but now all season resorts as well.

[35] The ASR Policy governs the development process from the initial tendering of

proposals, through Interim Agreement, environmental assessment, MP approval and

eventual execution of a MDA. The Minister’s decision on the MDA represents the

completion of that process.

C. Chronology of Events

[36] The Minister provided a basic chronology of relevant events from Glacier’s

initial proposal in March 1991 to the Minister’s provision of a rationale for approving

the MDA in March 2012. That chronology was supplemented by the Ktunaxa and


referred to at length by Glacier. Edited somewhat to account for the different parties’

concerns, I set out this chronology of events in Schedule “B”.

D. Discussion of Relevant Events

[37] It is not possible to easily summarize all the events that occurred from 1991

through 2012, which are described in detail in the extensive affidavit evidence.

Although the parties emphasize the significance of different events, there are no

significant factual disagreements. What follows is my summary of the relevant

events in the process leading to the Minister’s approval of the MDA.

1. Initial Planning Processes

[38] The Proposed Resort has been the subject of extensive review under a

number of processes since it was initially proposed in 1991, subject at that time to

the CASP. In this section I briefly describe the processes that occurred before the

Minister signed an Interim Agreement with Glacier in 1995.

(i) 1991-1993: CASP Review

[39] Glacier’s initial proposal of March 1991 was first subjected to review under

the CASP. As part of this review, the Minister held a public meeting in Invermere on

September 25, 1991. At this time, the KKTC communicated to the Minister that the

Proposed Resort was within their Comprehensive Land Claim area and requested a

continuous consultation process. The Minister acknowledged this request.

[40] The KKTC stated their opposition to the Proposed Resort at this time. They

gave the Minister a position paper that, among other things, asserts that many native

species of animals and fish in the Proposed Resort area, including grizzly bear, “hold

a very sacred place within our cultural spiritualism”. The report concludes at page 5:

The [KKTC] must state our opposition to the [Proposed Resort]. If such a large-scale development were to proceed, the destruction of heritage resources, culturally significant sites, and wildlife habitat would lessen the quality of life within our traditional territory, not only for ourselves, but for out non-native neighbours as well.

…


Monetary gain does not always leave one further ahead. Environmental concerns must be fairly weighed against economic benefits to arrive at a balanced conclusion. Without a full inquiry and land management strategy in place, any major development should not take place.

[41] Having received no other competing proposals, Glacier was granted sole

proponent status in February 1993. At this time, the Minister also informed Glacier

that any further consideration of the Proposed Resort under the CASP was deferred

until the completion of CORE land-use planning for the Kootenay region.

(ii) 1993-1994: CORE Review

[42] The CORE review lasted almost 18 months, from early 1993 until late 1994,

and had the objective of producing a new land use plan for the region. A formal

public meeting was held in the East Kootenays every month. The CORE review

specifically considered the Proposed Resort.

[43] The CORE review concluded in October 1994 with the submission of land use

recommendations for the region to the Province. These submissions included

assigning “very high recreation and tourism values” to the Proposed Resort area and

recommending that the approval process for any resort include obtaining an EAC

under the Environmental Assessment Act.

[44] In August 1994, just prior to the conclusion of CORE review, Chief Joe

Nicholas of the CLIB wrote to the Minister of Aboriginal Affairs and the Minister of

Environment, Lands and Parks, advising that the CLIB was “adamantly opposed” to

the Proposed Resort proceeding “before the Treaty process is completed.”

[45] Chief Nicholas raised some 16 points, including that the Proposed Resort

should be assessed under the Environment Assessment Act as well as under the

CASP. Among other things, he expressed concern about potential “grizzly – man

conflicts”. He also stated that the area “has always been used by Ktunaxa and

Shuswap people for hunting and gathering” and that “[w]e are presently doing a

comprehensive cultural inventory of our traditional area and until it is complete, we

are not in a position to fully assess the impact of such a development on us”. Chief


Nicholas did not describe the area as sacred. This letter is attached and marked as

Schedule “C”.

[46] In March 1995, the Province released a summary of the CORE East

Kootenay Land Use Plan and West Kootenay-Boundary Land Use Plan (“KBLUP”),

which designated the Upper Jumbo Creek Valley as within a special management

area, requiring enhanced levels of management. The KBLUP also identified a ski

resort as an acceptable land use for the Proposed Resort area but recommended

that any project proposal be subject to an environmental assessment.

(iii) 1995: Interim Agreement

[47] After four years of review, first under the CASP and then within the broader

CORE land-use planning process, Glacier and the Minister entered an Interim

Agreement in respect of the Proposed Resort in July 1995. This agreement required

Glacier to submit the Proposed Resort to environmental assessment. If an EAC was

subsequently issued, the Interim Agreement committed the Minister to “negotiate

and in good faith attempt to conclude” a MDA for the Proposed Resort.

2. 1995-2004: Environmental Assessment

[48] Environmental assessment of the draft MP for the Proposed Resort began in

July 1995. Government agencies (federal, provincial, and municipal), First Nations,

and the public were invited to participate. At the first meeting in August 1995, the

KKTC, SIB, and CLIB were all represented.

[49] At a public meeting in September 1995, Chief Nicholas of the CLIB read a

prepared statement outlining four of the five KKTC bands’ opposition to the

Proposed Resort. The SIB did not sign that statement. The KKTC gave the Minister

written comments on the Proposed Resort which recognised they were unable “to

confirm if these comments reflect the concerns of the [SIB]”. These comments state

that the Ktunaxa are “adamantly opposed” to the Proposed Resort and “believe that

sufficient information is available to reject” the EAC application at the first stage of

review. However, the comments also say that if the environmental review does


proceed, a number of issues must be addressed, including undertaking a “full

assessment of traditional and contemporary First Nations use of the Jumbo valley …

in cooperation with the KKTC”. They outline the need for a grizzly bear impact

assessment but do not specifically mention the sacred nature of the area.

[50] The SIB wrote to the Minister in November 1995 indicating they “want to know

more about the [Proposed Resort], not fight it”. The letter also states:

…Tourism is the economic future of this part of the Kootenays and we see with favour serious initiatives that can help the region grow. [The SIB] has something to contribute and is looking at the ways to participate in this growth. [The SIB] does not want to wait to see the end of treaty negotiations before economic activity can occur.

The [SIB] finds the [Proposed Resort] interesting and is looking forward to the opportunity of learning more about it. We are disturbed by some of the antagonistic positions that we have observed. We know the area. We know the valley. We know the bears. We know where they are. We are more simply, but we know how to think; we take time to think. We do not believe that the white man has yet learnt to use good judgment and to understand nature. the conflict is there, not in the [Proposed Resort], the [Proposed Resort] may be good for the valley.

[51] The Environmental Assessment Office (“EAO”) worked on preparing project

specifications from October 1995 to May 20, 1998, when the Final Project Report

Specifications were issued. The list of reporting requirements is 41 pages long and

covers multiple aspects of the Proposed Resort, including reporting requirements for

First Nations consultations and wildlife resources, of which grizzly bear are one.

[52] Several studies were commissioned during the environmental assessment

process. Notable among them are (1) a traditional use study submitted to Glacier by

the Ktunaxa titled, “Ktunaxa Aboriginal Interests: Traditional Use and Archaeological

Overview of the Proposed Glacier Alpine Resort”, (2) a report commissioned by the

EAO titled, “First Nations Socio-Economic Assessment: Jumbo Glacier Resort

Project, A Genuine Wealth Analysis” (the “Anielski Report”), (3) a socio-economic

study submitted to the EAO by the SIB titled, “Socio/Economic Study: Shuswap

Indian Band”.


[53] Page 61 of the Anielski Report states:

A4. Sacred Values

Many people we interviewed expressed a sense of the sacred importance of the Jumbo Creek Valley, Jumbo Pass and environs proposed for development. …

Several members of the Ktunaxa nation spoke about the sacred or spiritual nature of the Jumbo Creek area used by their ancestors the Quatmutnik for over 10,000 years. Spiritual values are difficult to identify or quantify yet were expressed by several elders.

…

Several elders and members from all bands of the KKTC expressed a spiritual and sacred reverence for the grizzly bear that inhabits the Jumbo Creek valley and adjacent Purcell Conservancy Wilderness area. The grizzly bear is viewed by many as [an] indicator of the sacred value of the area and the reason why the Jumbo Creek valley should be left undeveloped. …

[54] Among the conclusions on page 80-81 of the Anielski Report are:

• Many people expressed the sacred importance of the integrity of the area to their current well-being and the well-being of future generations and suggested that there is no price or set of socio-economic benefits great enough to compensate them for the loss of this priceless, sacred area. Many were unequivocal in their statements that the area should be left alone as a place of spiritual importance and to the grizzly bear.

• Many consider the grizzly bear to be a sacred creature and indicator of the sacred importance of the Quatmu and thus any regrettable impact or loss of grizzly bear habitat and population would be viewed as a loss of their own sacred heritage, namely the ancestral value of the Quatmu area.

[55] Page 81 of the Anielski Report states:

What is indeed unique about this study is the significance of sacred values revealed about a place or area known as “Jumbo” or Quatmu and the associated sacredness of the grizzly bear, as indicator of sacred values. … The expressions of the sacred and “priceless” value of the Jumbo/Quatmu by many of the First Nations people should not be underestimated. As economists, we could interpret this situation as a revealed preference of no development under any circumstances with an “infinite price” tag. In another sense revealing values which are sacred suggests that there is no pareto[sic] solution where there is any price or willingness to accept compensation (even in kind) which would be acceptable to those who expect a loss of welfare.


[56] When the new Environmental Assessment Act, S.B.C. 2002, c. 43, came into

effect in December 2002, Glacier was given until December 31, 2003, to submit the

information required to complete the environmental review under the new act.

Glacier submitted a “Project Report” on December 30, 2003; this was Glacier’s

response to the EAO’s Final Project Report Specifications and included a

significantly revised MP concept. The Project Report is comprehensive and

comprises 13 volumes. The EAO accepted the Project Report for review in January

2004. Glacier submitted additional material required by the EAO on February 4,

2004.

[57] The EAO invited the KKTC and its member bands, including the SIB, to

participate in reviewing the Project Report and asked them to prepare a participation

budget. The SIB participated as a member of the technical committee. The KKTC

only participated in the late stages of the review under protest with respect to the

amount of the funding offered to them by the EAO.

[58] It was at this time that the letter attached and marked as Schedule “A” was

sent by the SIB to the KKTC indicating that they are not in agreement with the

KKTC’s position on the Proposed Resort.

[59] By letter dated July 20, 2004, the KKTC submitted a document to the EAO

titled “Jumbo Glacier Resort Project: Final Comments on ‘Measures Proposed to

Address Issues Identified by the Ktunaxa Nation”. The letter contained a summary of

the document’s principle conclusions, among which it was stated that “there are

sacred values associated with this part of Ktunaxa traditional territory”. This letter

also recommended that the EAO direct Glacier to “attempt to negotiate an IMBA

[Impact Management and Benefits Agreement] with the KKTC within a specified

time-frame”.

[60] Over nine years after the environmental review process commenced, the

Proposed Resort was granted an EAC on October 12, 2004 that was valid for five

years. The EAO’s Final Project Report describes the KKTC, SIB, and CLIB’s

participation in the environmental review process in detail.


[61] The Ktunaxa did not challenge the EAC in court. However, a heli-skiing

company that operated in the Upper Jumbo Valley did seek judicial review. As

mentioned in the introduction to these reasons, both this court and the Court of

Appeal upheld the EAC.

[62] The EAC subjected the Proposed Resort to 12 conditions. Number 9 required

Glacier to negotiate with the KKTC and attempt to conclude IMBA prior to submitting

the final MP for the Proposed Resort. The KKTC requested this condition in

correspondence to the EAO dated July 20, 2004, and again in correspondence to

the Minister dated August 30, 2004. Glacier successfully negotiated an IMBA with

the SIB, who withdrew from the KKTC in 2005, but did not succeed in negotiations

with the Ktunaxa. The EAC also listed 195 commitments by Glacier in respect of the

Proposed Resort.

[63] In January 2009, the EAC deadline for the “substantial start of construction”

was extended for an additional five years to October 2014. All of the other original

terms, conditions, and commitments by Glacier remained in effect.

3. 2005-2007: Master Plan Review

[64] The next stage in the regulatory process was the development and approval

of a MP. Glacier submitted a Draft MP to the Minister in August 2005 which

incorporated the EAC recommendations. It was accepted for review under the CASP

in December 2005.

[65] The Draft MP review process took place from 2005-2007 and included

consultation with the public, First Nations, and municipal and provincial government

agencies. Particular attention was paid to meeting the conditions and commitments

contained in the EAC. There were extensive discussions about a proposed

Conservancy or Wildlife Management Area (“WMA”), an ecosystem stewardship

framework, access management areas, monitoring, and socio-economic issues.


(i) Gap Analysis

[66] When the Draft MP was submitted by Glacier, the Ktunaxa took the position

that the First Nations section was inadequate and requested additional opportunities

for direct consultation beyond what they were afforded through the environmental

assessment process. By letter dated May 19, 2006, the Ktunaxa proposed entering

discussions with the Minister with the goal of concluding a consultation agreement

that would form the basis for all subsequent negotiations. They requested capacity

funding of $35,500 to facilitate their participation in these discussions. The letter also

stated:

We appreciate that an important step to be taken is the negotiation of an [IMBA] with [Glacier]. At the appropriate time we will welcome an opportunity to attempt to conclude such an agreement.

[67] In response, the Minister offered to fund three technical consultants for the

Ktunaxa and hire an independent facilitator for the process.

[68] In June 2006, a consultant for the Ktunaxa completed a “Gap Analysis”

identifying what was then understood to be an exhaustive list of concerns arising

from the EAC and Draft MP. This analysis highlighted the need for further

information in three areas to properly inform the consultation: (1) contemporary land

and resource use by the Ktunaxa of the Jumbo valley; (2) the effectiveness of

proposed mitigation measures to reduce disturbance, displacement and mortality

impacts to key wildlife populations from road traffic on the access road; and (3)

project-induced socio-economic effects to the regional economy, land use, cost of

living, etc. that might affect Ktunaxa well-being. At a subsequent meeting between

the Ktunaxa and the Minister it was agreed that the consultation process would be

built around the Gap Analysis.

[69] One of the 34 issues identified in the Gap Analysis was that the Jumbo Valley

is an area of cultural significance and has sacred values. On this issue, the analysis

stated that the “cultural impacts remain unassessed”, neither Glacier nor the Minister

has proposed any measures to address the issue, and the “traditional land use study

does not provide adequate info to assess effect”.


[70] This issue was incorporated into a rolling draft “Issues and Measures

Tracking” document created in September 2006.

[71] On September 27, 2006, the Ktunaxa and the Minister entered a formal

consultation agreement (the “Consultation Agreement”), which provided extensive

capacity funding. One stated purpose of this consultation was to “[i]dentify and

exchange sufficient information for each Party to decide whether to enter into

negotiations of an accommodation and benefits agreement. However, the

Consultation Agreement also provided for the Minister incorporating mitigation

measures in the event an accommodation and benefits agreement was not

negotiated.

[72] Based on the Gap Analysis, a series of meetings and workshops were then

proposed to discuss topics including: Land Use Options; Grizzly Bear Management;

Other Wildlife; and Residual Issues (including governance, cumulative effects,

greenhouse gases, socio-economic matters).

[73] From 2006 to 2009, meetings, workshops, studies, and accommodation offers

were exchanged between the parties. The Ktunaxa were provided capacity funding

of approximately $63,000 during this period, with an additional amount of

approximately $115,000 provided from 2010 to 2012.

(ii) Accommodation is a possibility

[74] The Ktunaxa have generally opposed the Proposed Resort from the outset.

However, after the EAC was issued in 2004 and during the 2006 – 2009

consultations, they took the position that they were hopeful their outstanding

concerns could be dealt with through ongoing consultations with the Minister and an

accommodation and benefits agreement could be negotiated. I have already

described how the Ktunaxa requested the EAC condition that Glacier attempt to

negotiate an IMBA with them. The sacred values in the Proposed Resort area was

an issue specifically identified in the Gap Analysis and incorporated into the “Issues

and Measures Tracking” document. This issue was discussed at the “Land Issues”

workshop held on October 12-13, 2006, in Cranbrook, BC.


[75] Following this workshop, a document titled “Working Outline: Ktunaxa-British

Columbia Accommodation” was prepared and circulated by the same consultant

who conducted the Gap Analysis. This document identified “degradation of the

cultural and sacred significance of the valley” as an issue to be addressed in respect

of land use in the Proposed Resort area. The document also outlined a concept for

accommodation of the land use concerns through (a) a fee simple land transfer to

the Ktunaxa, (b) the establishment of a land reserve, and (c) the establishment of a

conservancy in proximity to the CRA. The land use issues workshop was followed by

workshops in November, December 2006, and January 2007, addressing grizzly

bear, other wildlife, and residual issues, respectively. By the end of these

discussions, the document contained the same conceptual framework for

accommodating the Ktunaxa’s land use concerns.

[76] In November 2006, the Minister received a copy of a letter from the Ktunaxa

to Glacier which states the Ktunaxa believe they have made “considerable progress

in setting up a process for the negotiation of an [IMBA]” between the Ktunaxa and

Glacier. The two issues identified as standing in the way of finalizing an Engagement

Framework are “funding” and “the outstanding issue of unpaid monies”. In April

2007, the Minister received a letter from Glacier which stated that Glacier believed

they had reached an “agreement in principle” with the Ktunaxa.

(iii) MP Approval

[77] The Minister approved the MP on July 12, 2007. The MP outlined the nature,

scope, and pace of the Proposed Resort’s development, identified land tenure

requirements, and incorporated recommendations arising from consultation with

Glacier, the public, and First Nations, as well as from the environmental review

process.

[78] The Minister specifically advised the Ktunaxa that MP approval did not

preclude additional mitigation measures being included in the MDA based on the

ongoing consultation between the Minister and the Ktunaxa. In fact, extensive

changes to the MP were subsequently made in response to the Ktunaxa’s concerns.


[79] At the time the MP was approved in 2007, there had been several references

to and discussion about “sacred values” in the Proposed Resort area. These

included: (1) the 2003 Anielski Report; (2) the KKTC’s final comments submitted to

the EAO in July 2004; and (3) the 2006 Gap Analysis and the subsequent draft

accommodation documents.

[80] Despite these general references, the Ktunaxa had not asserted that the

Proposed Resort is irreconcilable with those sacred values or that the only possible

accommodation is for the Proposed Resort to not proceed. Rather, extensive efforts

were made to identify mitigation measures and possible accommodations on the

premise that the Ktunaxa’s concerns about the Proposed Resort could be properly

mitigated or accommodated.

4. 2007-2009: Further Ktunaxa Consultation

(i) Accommodation is offered

[81] After several months spent acquiring the necessary financial approval, the

Minister made an accommodation proposal to the Ktunaxa in December 2007. The

offer included $650,000 in economic benefits to be taken in cash or Crown land. In

addition there were some nine other non-financial accommodations offered,

including establishing a land reserve equivalent in size to the CRA.

[82] In February 2008, the Ktunaxa rejected the proposed accommodation

agreement on the basis that (1) the financial component was “grossly insufficient”

and (2) it was inappropriate for the Minister to provide identical financial

accommodation to the SIB given the Ktunaxa’s “far greater history in the Jumbo

area”. The letter also stated that “reaching agreement on the principles, objectives,

and scope for a WMA is of critical importance to Ktunaxa consideration of a potential

accommodation package”. The sacred nature of the Jumbo Valley was not

mentioned as a basis for rejecting the Minister’s offer.

[83] In September 2008, the Minister offered a second accommodation proposal

to the Ktunaxa in the form of revenue sharing in an Economic and Community


Development Agreement. The Ktunaxa rejected this second accommodation

agreement on December 4, 2008. This rejection letter noted that the Jumbo Valley is

a “place unique and sacred to the Ktunaxa”.

[84] Following discussions in January 2009, the Ktunaxa gave formal notice to the

Minister in February under s. 8.1 of the Consultation Agreement that they wanted to

enter into “a process to negotiate an accommodation and benefits agreement” in

respect of the Proposed Resort. The Minister replied in April 2009 providing

reciprocal formal notice under the Consultation Agreement and offering additional

capacity funding to the Ktunaxa for this process.

[85] As late as May 2009, the Ktunaxa provided the Minister with a list of

outstanding issues and possible accommodation measures to be discussed,

including land transfers, land reserves, a wildlife conservancy, development-free

buffer zones beside the access road, access rights in the CRA, a stewardship

framework economic compensation, revenue sharing, on-going supervision of

environmental commitments, and other measures. The sacred nature of the Jumbo

Valley is not among them.

[86] On June 3, 2009, the Minister advised the Ktunaxa that in the Minister’s

opinion a reasonable consultation process had occurred and that most of the

outstanding issues were primarily interest-based rather than legally driven by

asserted Aboriginal rights and title claims. The Minister stated a belief that the

Proposed Resort could proceed subject to an extensive list of mitigation measures.

Though expressing an intention to continue negotiating a benefits agreement with

the Ktunaxa, the Minister opines that the conclusion of such an agreement is not

necessary before a decision is made on the MDA. A copy of that correspondence is

attached and marked as Schedule “D”.

[87] Attachment 1 to that letter was a six page table titled “Response to Ktunaxa

Concerns”. The first issue in the table was described as “Jumbo Valley is an area of

cultural significance/has sacred values”. The response provided in the table states,

“No definitive evidence of cultural significance or sacred values have been offered”.


[88] Following receipt of this letter and in anticipation of a meeting with the

Minister the next day, the Ktunaxa indicated via email on June 8, 2009, that the table

of concerns attached to the letter of June 3, 2009, was outdated. As such, the

Ktunaxa provided the Minister with an updated table of outstanding Ktunaxa

concerns. The Proposed Resort’s incompatibility with the sacred nature of the area

is not listed among the issues included in that table.

(ii) Sacred Site - No accommodation is possible

[89] At meetings on June 9-10, 2009 in Vancouver, and with legal counsel

present, the Ktunaxa asserted that the consultation process was deficient, in part,

because it had not properly considered information that the Jumbo Valley was a

sacred site.

[90] At those meetings, the Ktunaxa also advised the Minister that only certain

members of the Ktunaxa community, knowledge keepers or holders, have

information about sacred values and they must be selective about the distribution of

that information. The Minister agreed to meet with Chris Luke, Sr. on June 22, 2009,

as the Ktunaxa identified him as a knowledge holder who was better placed to speak

to the issue. However, this meeting did not proceed as scheduled.

[91] Following the June 9, 2009 meeting, the Minister agreed to extend the

consultation process with the Ktunaxa, until at least December 2009, to specifically

address the issue of sacred values. On June 18, 2009, the Minister sent the Ktunaxa

a revised strength of claim assessment.

[92] On July 31, 2009, the Minister sent the Ktunaxa a letter which, among other

things, reviewed previous accommodation proposals by the Minister and identified

which parts of those proposals were either still on or now off the table. For example,

the proposed establishment of a land reserve of equivalent value to the CRA is

identified as no longer on the table, whereas the proposed establishment of a buffer

either side of the access road is identified as still on the table.


[93] Efforts to arrange a meeting about sacred values continued. By

correspondence dated August 5 and September 16, 2009, the Minister recognized

the Ktunaxa’s concerns about the secret and sensitive nature of the information that

was to be shared and committed to treating any information regarding sacred values

as confidential.

[94] On September 19, 2009, the Minister met with the Ktunaxa, including

Mr. Luke, in Cranbrook, BC. At that meeting, Mr. Luke spoke in the Ktunaxa

language and was translated into English. He advised the Minister that Qat’muk was

“a life and death matter”, that “Jumbo is one of the major spiritual places”, and that to

say the sacredness of the area for the Ktunaxa was important would be an

understatement.

[95] Mr. Luke indicated at this time that any movement of earth and the

construction of permanent structures will desecrate the area and destroy the valley’s

spiritual value. At this meeting, the Ktunaxa made it clear that there was no “middle

ground” regarding the Proposed Resort. In other words, the Ktunaxa say that it was

not that they were unwilling to compromise, but simply that no accommodation was

possible.

[96] Despite the “no middle ground” position adopted by Ktunaxa at the meeting

on September 19, 2009, the Minister continued to engage the Ktunaxa in discussion.

A second meeting took place in Creston, BC, on December 7, 2009, at which the

Ktunaxa confirmed their opposition to the Proposed Resort.

5. 2010-2012: MDA Approval

(i) Consultation/Accommodation Summary

[97] Following a significant amount of time spent considering the Ktunaxa’s

spiritual claims, the Minister sent a 71 page draft “Consultation/Accommodation

Summary” to the Ktunaxa on June 11, 2010, and invited the Ktunaxa’s comments on

the document. A full seven pages of this document is devoted to describing the


consultation and accommodation specifically related to the Ktunaxa’s assertions

regarding the sacred nature of the Jumbo Valley.

[98] On July 8, 2010, the Minister met with the Ktunaxa to discuss the

Consultation/Accommodation Summary. Revisions were made as a result of this

meeting and a draft showing tracked changes was provided to the Ktunaxa on July

11, 2010.

[99] The Ktunaxa responded on August 16, 2010, through a memorandum titled

“Comments on Jumbo Glacier Resort background documents”. This document is 40

pages long and devotes the first page and a half to describing the impact of the

Proposed Resort on Ktunaxa sacred values.

(ii) Qat’muk Declaration

[100] In November 2010, the Ktunaxa publicly issued the Qat’muk Declaration,

which unilaterally proclaims and maps an area in which the Ktunaxa say they will not

permit development. A copy of the Qat’muk Declaration is attached and marked as

Schedule “E”.

[101] The Qat’muk Declaration, based in part on a claim to “pre-existing

sovereignty”, proclaims that Qat’muk “includes the entirety of the Toby-Jumbo

watershed and the uppermost parts of the South Fork Glacier Creek, Horsethief

Creek and Farnham Creek Watersheds” (an area estimated to be 14,714 hectares).

The Qat’muk Declaration attaches a map that identifies a “refuge” area

(approximately 5,915 hectares) and “buffer” area (approximately 8,799 hectares).

[102] The Qat’muk Declaration asserts that both the refuge and buffer areas

cannot be subject to the construction of buildings or structures with permanent

foundations or permanent human occupation. The Qat’muk Declaration also asserts

that no disturbance or alteration of the ground of any kind is permitted within the

refuge area. The Proposed Resort is partially within the refuge area and the access

road is within the buffer area.


[103] After issuing the Qat’muk Declaration, the Ktunaxa took the position that the

only purpose of consultations was to ensure that decision-makers fully understood

why the Proposed Resort could not be approved.

(iii) Further Discussion

[104] The Minister continued to explore potential mitigation and accommodation

measures through additional consultations on the MDA. I discuss these

consultations in detail under my analysis of whether the Minister met the

constitutional duty to consult and accommodate.

[105] The Minister signed the MDA with Glacier on March 20, 2012. The MDA

contains a number of measures responding to concerns raised by the Ktunaxa

during the consultations. At the same time the Minister provided the Ktunaxa with a

written rationale for the decision to approve the MDA (the “Minister’s Rationale”). It is

attached to these reasons and marked as Schedule “F”.

E. The “no middle ground” position

[106] The “no middle ground” position appears to be primarily based on the beliefs

of a Ktunaxa elder (Chris Luke, Sr.). Mr. Luke was born in 1948 and raised in Yaqan

Nukiy, south of Creston. It appears that Mr. Luke only acquired the belief that no

accommodation was possible in 2004, when he realized that he had to speak up for

and be the voice of the Grizzly Bear Spirit.

[107] Mr. Luke’s belief that the Proposed Resort was incompatible with the sacred

values in the area was not immediately shared with other Ktunaxa. He did not share

it with any third parties until 2009, seemingly for health reasons. The Ktunaxa also

explain that they have a cultural reluctance to share specific spiritual beliefs although

there is less difficulty sharing such in general terms and did so, as recorded in the

Anielski Report and on other occasions as noted above.

[108] The Ktunaxa say that “if the ski resort is built where it is intended to be built,

Grizzly Bear Spirit will leave that area, the Ktunaxa will no longer have access to it or

the gifts it provides to them, and that their religious rituals involving Grizzly Bear


Spirit will become meaningless” . Various affiants make statements in support of this

assertion (e.g. Ms. Birdstone, Mr. Alpine, Mr. Joseph, Ms. Nicholas, Mr. Auld,

Mr. Pierre, Ms. Friedlander, Ms. Jimmy, Mr. Finley, Mr. Luke, and Ms. Stevens).

[109] Some affiants testify that Qat’muk was a site for religious rituals or

ceremonies in former times (e.g. Ms. Birdstone’s Affidavit #1 at paras. 59-61;

Ms. Jimmy’s Affidavit #1 at para. 18; Mr. Joseph’s Affidavit #1 at paras. 34-35;

Ms. Stevens’ Affidavit #1 at para. 26). Others testify as to the spiritual importance of

their own occasional visits to Qat’muk (e.g. Ms. Jimmy’s Affidavit #1 at para. 27;

Ms. Nicholas’ Affidavit #1 at paras. 29-31; Mr. Joseph’s Affidavit #1 at paras. 40-41;

Ms. Stevens’ Affidavit #1 at paras. 25-26; Mr. Luke’s Affidavit #1 at paras. 78-79;

Ms. Tennessee’s Affidavit #1 at para. 94; Ms. Cote’s Affidavit #1 at para. 32). In the

summer of 2011 and 2012, several affiants describe attending a Ktunaxa camp in

Qat’muk (e.g. Ms. Nicholas’ Affidavit #1 at para. 33; Mr. Alpine’s Affidavit #1 at para.

50; Ms. Friedlander’s Affidavit #1 at para. 25; Mr. Pierre’s Affidavit #1 at paras. 63-

74, Mr. Luke’s Affidavit #1 at para. 80; Ms. Kains Affidavit #1 at para. 31).

[110] Overall there is little evidence that the Ktunaxa physically visit the area of the

Proposed Resort for the purpose of carrying out religious rituals or ceremonies on a

consistent basis. There are no specific sites identified. The camp referred to is at the

abandoned mine site near the forestry access road at the confluence of Toby Creek

and Jumbo Creek. However, as I understand the Ktunaxa’s argument, they do not

need to physically go to any particular place within Qat’muk for it to be of

significance to their culture and religion. Rather, it is the spiritual meaning of

Qat’muk that is essential to Ktunaxa religion and spirituality. More specifically, it is

the continuing presence of the Grizzly Bear Spirit, whose home is in Qat’muk, which

is of critical importance to their religious rituals and ceremonies.

[111] The Ktunaxa say that the Proposed Resort, a place of permanent human

habitation, will violate their freedom of religion by causing the Grizzly Bear Spirit to

leave. The departure of the Grizzly Bear Spirit will render meaningless their rituals

and ceremonies involving the Grizzly Bear Spirit, regardless of where they are


performed, which is mostly elsewhere. Thus, the proposed accommodations, indeed

any accommodations short of disallowing the Proposed Resort, are incapable of

addressing their concerns.

V. Evidentiary Issues

[112] The Minister and Glacier object to the admissibility of some of the expert

opinion evidence submitted by the Ktunaxa as part of this judicial review. I have

already listed the reports objected to, which were not before the Minister when the

MDA was approved. The Minister and Glacier question whether any or all of these

reports are properly before the Court.

A. Law: The admissibility of extrinsic evidence on judicial review

(i) The general rule on judicial review

[113] As a general rule, the scope of admissible evidence in a judicial review

proceeding is limited to the record that was before the decision-maker whose

decision is under review: Smith v. Canada, 2001 FCA 86 at para. 7.

[114] In Morlacci v. British Columbia (Ministry of Energy, Mines and Petroleum

Resources) (1997), 44 B.C.L.R. (3d) 41, 1997 CanLII 4020 (C.A.), the expert opinion

of a hydrologist was ruled inadmissible on judicial review of an inspector’s decision

to issue a Mines Act permit. The evidence was inadmissible because the court’s role

on judicial review is not to consider the matter anew or adjudicate conflicting expert

opinions based on new evidence, but to review the decision on the basis of the

material before the decision maker.

[115] A similar result followed in Friends of Cypress Provincial Park Society v.

British Columbia (Minister of Environment, Lands and Parks), 2000 BCSC 466 at

paras. 3-5; Western Canada Wilderness Committee v. British Columbia (Minister of

Forests), 2002 BCSC 1260 at paras. 29-35.

[116] The Ktunaxa note that there are exceptions to this general rule. For example,

extrinsic evidence may be admitted where relevant to an allegation concerning a

defect in procedural fairness or jurisdictional error: Alberta Wilderness Association


v. Canada (Environment), 2009 FC 710 at para. 30; Association of Universities and

Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22 at para.

20.

[117] The Ktunaxa say the opinions they seek to admit are relevant to the two

constitutional issues, namely the Minister’s duty to consult and the alleged

infringement of s. 2(a) of the Charter. They say cases involving such matters have

admitted extrinsic evidence, including Chartrand v. The District Manager, 2013

BCSC 1068; Liidlii Kue First Nation v. Canada (Attorney General), [2000] 4 C.N.L.R.

123, 2000 CanLII 15881 (F.C.) [Liidlii Kue]; Tsuu T’ina Nation v. Alberta

(Environment), 2008 ABQB 547 [Tsuu T’ina], aff’d 2010 ABCA 137; Adams Lake

Indian Band v. British Columbia, 2011 BCSC 266 [Adams Lake], rev’d on other

grounds 2012 BCCA 333, leave to appeal ref’d [2012] SCCA No. 425; Mitchell v.

M.N.R., 2001 SCC 33; Algaithy v. Ottawa University, 2011 ONSC 5879; Lockridge v.

Director, Ministry of the Environment, 2012 ONSC 2316; Gitxsan Treaty Society v.

Hospital Employees’ Union, (1999), [2000] 1 F.C. 135, 1999 CanLII 7628 (C.A.)

[Gitxsan]; Native Council of Nova Scotia v. Canada (Attorney General), 2011 FC 72

[Native Council].

[118] I find, however, that the opinions the Ktunaxa seek to admit fall outside the

exceptions to the general rule against the admissibility of extrinsic evidence on

judicial review.

(ii) Judicial review of the duty to consult and accommodate

[119] In the recent case of Chartrand, Weatherill J. admitted both expert and lay

extrinsic evidence which he found “was necessary to support a specific ground of

review”, namely whether the Kwakiutl First Nation could show that the Provincial

Crown had a duty to consult them in the context of their claim for Aboriginal rights

and title in their traditional territory beyond certain treaty lands (para. 117). In making

this decision, the Court referred to the decisions in Adams Lake, Liidlii Kue, and

Tsuu T’ina.


[120] In Adams Lake, which was reversed on other grounds, Bruce J. admitted a

letter which contained a preliminary strength of claim analysis prepared by the

Crown and an outline of the consultation process contemplated. The letter was

admitted because it described the Crown’s assessment of the strength of the Adams

Lake Indian Band’s claim regarding the same lands as were in dispute in that case,

even if the letter was prepared for a separate decision-making process (para. 42).

The letter was clearly relevant to a specific ground of review, namely the scope of

the duty to consult.

[121] In Liidlii Kue, the Liidlii Kue First Nation challenged the issuance of a land use

permit to allow for test drilling. The First Nation alleged that a duty to consult existed

but that consultation neither occurred nor was even contemplated (para. 31). Both

parties filed numerous affidavits addressing matters that were not before the

decision-maker. Reed J. admitted them as relevant to determining whether the duty

to consult existed and, if so, the scope of that duty (para. 32).

[122] In Tsuu T’ina, expert reports were admitted as relevant to the issue of

whether there is a duty to consult. The court said at paras. 25-29:

[25] These Applications for Judicial Review were brought under the Rules as Originating Notices. There is little doubt the Return forms the primary evidentiary base for the Applications. So the question becomes whether that is all that may be considered.

[26] In a duty to consult analysis, the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests) has stated that a preliminary assessment of the merits of the claim must be made by the Court. To make this preliminary assessment, the Court would be required to review something. Unless the particular government action put in issue the claim made, it is difficult to envision a set of circumstances where the information the Court might be required to review would all be found in the Return.

[27] It is clear from the language used by the Supreme Court of Canada in Haida that the Justice who heard the case in the reviewing Court considered evidence that the Justice described as “voluminous” with respect to the history of the Haida people, their culture and traditions. Although it is not stated how this evidence was led, there is no suggestion in the decision that it was part of a return. It was most likely led through affidavit evidence.

[28] The decision in Haida must be seen as a tacit approval of evidence, which would go beyond that contained in a return, being considered by the Court in a judicial review when the Crown’s duty to consult is an issue.


[29] Perhaps more fundamentally, the duty to consult is grounded in the honour of the Crown. It would not be in keeping with the honour of the Crown to strike evidence which is available and might assist the Court in making a preliminary assessment of the merits of the right claimed and the other issues before the Court.

[Emphasis added.]

[123] In this case, there is no issue regarding a duty to consult existing, nor is there

an issue regarding the scope of that duty. The Minister approached the development

process for the Proposed Resort based on there being a duty to consult requiring

deep consultation. This contrasts with the cases discussed above that involve

situations where either the existence of a duty to consult is not admitted, or there is

an issue regarding the scope of that duty.

[124] In my view, where it is conceded that there is a duty to consult, the required

consultation is agreed to be deep, and efforts to carry out such deep consultation

are made in good faith, there should be no need to resort to extrinsic evidence on

judicial review. Consultation is a two way street. There is an obligation on the parties

in such circumstances to put the evidence relevant to the asserted rights before the

decision maker: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73

[Haida] at para. 42; Mikisew Cree First Nation v. Canada (Minister of Canadian

Heritage), 2005 SCC 69 at para. 65; Halfway River First Nation v. British Columbia

(Ministry of Forests), 1999 BCCA 470 at para. 161.

(iii) Judicial review where the Charter is implicated

[125] In Gitxsan , the Federal Court of Appeal in dealing with Charter issues

opined that extrinsic evidence may be admissible in charter in those circumstances

in which “the only way to get at the want of jurisdiction is by the bringing of such new

evidence before the reviewing Court” (para. 13). Similar comments were made in

Native Council, Algaithy, and Lockridge.


[126] In Gitxsan, Rothstein J.A., as he then was, speaking for the Court, said at

paras. 12-15:

[12] As to the applicant's third argument, that constitutional evidence may be introduced in this Court, the applicant has made reference to some authorities that suggest that where jurisdictional issues are in question, evidence may be introduced at the judicial review stage. See for example, Westbank First Nation v. British Columbia (Labour Relations Board); Kenbrent Holdings Ltd. v. Atkey; and Canada (Minister of Citizenship and Immigration) v. Toledo.

[13] In In re McEwen, Rinfret J. refers to the seminal case of Rex v. Nat Bell Liquors Limited in which Lord Sumner, delivering the judgment of the Privy Council, squarely addressed the issue. Having regard to the dicta of Lord Sumner, I think the applicant is correct that on judicial review evidence extrinsic to the record before the tribunal whose decision is being reviewed may be introduced. However, the opportunity to do so is limited to those circumstances in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court. In McEwen, Rinfret J. quotes from Nat Bell Liquors as follows:

The subject was fully considered in Rex v. Nat Bell Liquors Limited. In that case, Lord Sumner, delivering the judgment of their Lordships of the Privy Council, said (p. 153):

In Reg. v. Bolton, Lord Denman, in a well-known passage, says: "The case to be supposed is one ... in which the Legislature has trusted the original, it may be (as here) the final, jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal. All that we can then do ... is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular and according to law ... Where the charge laid before the magistrate, as stated in the information, does not amount in law to the offence over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give him jurisdiction; the conviction would be bad on the face of the proceedings, all being returned before us. Or if, the charge being really insufficient, he had mis-stated it in drawing up the proceedings, so that they would appear to be regular, it would be clearly competent to the defendant to show to us by affidavits what the real charge was, and, that appearing to have been insufficient, we would quash the conviction; ... But, as in this latest case, we cannot get at the want of jurisdiction but by affidavits, of necessity we must receive them. It will be observed, however, that here we receive them, not to show that the magistrate has come to a wrong conclusion, but that he never ought to have begun the inquiry ...

At page 154:

The law laid down in Reg. v. Bolton has never since been seriously disputed in England.


At page 160:

When it is contended that there are grounds for holding that a decision has been given without jurisdiction, this can only be made apparent on new evidence brought ad hoc before the Superior Court. How is it ever to appear within the four corners of the record that the members of the inferior court were unqualified, or were biased, or were interested in the subject-matter?

In the case at bar, the issue is one of the constitutional jurisdiction of the CLRB under the Canada Labour Code. However, this is not a case in which the want of jurisdiction of the Board could only be made apparent on new evidence. The opportunity to introduce new evidence before the reviewing Court is not open simply on the grounds that the applicant chose not to introduce sufficient evidence before the Tribunal or did not comply with required procedure so as to enable the attorneys general to have the opportunity to do so.

[14] In Eaton, Sopinka J. said that it was essential for the Supreme Court to have the benefit of a record that is the result of a thorough examination of the constitutional issues in the court or tribunal from which the appeal arises. He stated:

The purpose of s. 109 is obvious. In our constitutional democracy, it is the elected representatives of the people who enact legislation. While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised except after the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it but to the people. Moreover, in this Court, which has the ultimate responsibility of determining whether an impugned law is constitutionally infirm, it is important that in making that decision, we have the benefit of a record that is the result of thorough examination of the constitutional issues in the courts or tribunal from which the appeals arise.

[15] In my respectful view, the same principle is applicable in this Court. The essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court. The latter is what the applicant is inappropriately proposing for this judicial review. This is not the necessity to which Lord Sumner was referring in Nat Bell Liquors, supra. The Court will not entertain new evidence in these circumstances.

[Emphasis added.]

[127] In Native Council, the Federal Court referenced Gitxsan for the proposition

that “[e]xtrinsic evidence is admissible in constitutional cases because often it is the

only way to address a constitutional issue, particularly when it concerns want of


jurisdiction” (para. 24). In Native Council, the validity of legislation was in issue and

the admitted evidence “…arguably provide legislative facts necessary for the

applicants' constitutional challenge” (para. 25).

[128] In Algaithy, the Ontario Superior Court of Justice Divisional Court reviewed

the limited circumstances in which extrinsic evidence can be admitted on judicial

review (para. 28). Dambrot J. notes the exception for cases involving an alleged

breach of natural justice and opines at para. 29:

[29] I would add that as with an allegation of a breach of natural justice, affidavit evidence must also be permissible to supplement the record to demonstrate a validly raised allegation of constitutional error (see Rafieyan v. Minister of Citizenship and Immigration, 2007 FC 727, [2007] F.C.J. No. 974 at para. 20). I emphasize that the constitutional issue must be validly raised. The mere labelling an issue as a constitutional one will not of itself open the door to the admission of otherwise inadmissible evidence.

[Emphasis added.]

[129] In Lockridge, the Ontario Superior Court of Justice Divisional Court refused to

strike evidence before a hearing “on the sole basis that it was not before the

decision-maker” where “the Charter and procedural fairness arguments are at the

core” of the judicial review. Harvison Young J. cites Algaithy for the proposition that

extrinsic evidence is admissible to demonstrate a validly raised allegation of

constitutional error.

[130] In this case, neither the Minister nor Glacier take issue with whether the

allegation of constitutional error is validly raised. Moreover, the Ktunaxa do not

appear to seek the introduction of the opinion evidence for this purpose.

[131] The cases the Ktunaxa rely on are exceptions to the general rule excluding

extrinsic evidence from consideration on judicial review. They are examples where

the court has made a principled but pragmatic exception to the general rule to

ensure that matters properly the subject of judicial review, such as breaches of

natural justice or jurisdictional or constitutional error, are reviewed on the basis of an

informed record.


[132] When assessing the compliance of a discretionary administrative decision

with Charter values, the question on judicial review is whether the decision-maker

has properly balanced the relevant Charter value with the statutory objectives. An

administrative decision-maker can only balance the information before him or her.

Where an asserted Charter right is raised with an administrative decision-maker as

part of a consultative process leading to the impugned decision, there must be an

obligation on the party raising the Charter issue to place before the decision-maker

all relevant evidence characterising the asserted Charter right.

[133] In this case, the Ktunaxa raised “sacred values” in 2003 during the

development process for the Proposed Resort, although it was not until 2009 that

they asserted there could be no accommodation of these values. While the Ktunaxa

may not have described their asserted rights using the language of the Charter until

later, in my opinion the substance of the asserted right was always before the

Minister. Having raised the issue of the importance and sacred nature of Qat’muk,

which is the substance of the Charter issue, the Ktunaxa were therefore under an

obligation to place before the Minister any evidence they think is relevant to their

asserted rights.

[134] In my opinion, extrinsic evidence that goes to characterising an asserted

Charter right is not admissible where it could and should have been placed before

the decision-maker tasked with the responsibility of balancing Charter values with

statutory objectives. In short, simply characterizing the issue as the infringement of a

Charter right in the later stages of the decision-making process does not absolve the

party asserting the infringement from the obligation to bring the relevant evidence

before the decision-maker.

B. Analysis: Should I admit the expert reports tendered?

[135] The Ktunaxa submit that the five expert reports tendered are relevant “as they

provide the context and information to assist the court in determining the existence

and scope of the duty to consult, and the charter right claimed”. Although the

Ktunaxa’s claimed infringement of their s. 2(a) and s. 35 constitutional rights are


discrete, they seek the admission of extrinsic evidence that goes to characterizing

both asserted rights.

[136] On the duty to consult issue, the Ktunaxa assert that the reports speak to “the

strength of the Ktunaxa Nation’s claim to the territory and aboriginal rights at issue in

this case” and serve to “illustrate the background and nature of the consultation that

occurred”.

[137] I have found that where the duty to consult is conceded to be deep and a

process is established to fulfill that duty, there is an obligation on both the Crown

and the First Nation to put their positions and evidence regarding the claimed

aboriginal rights and territory before the decision-maker. To the extent that the

expert reports are tendered for this purpose, I decline to admit them into evidence. I

emphasise again that this is not a case where the existence or the scope of the duty

to consult is in issue.

[138] To the extent that the reports illustrate the nature of the consultation that

occurred, I would admit them. My assessment of whether the duty to consult has

been fulfilled is, in part, one of procedural fairness and constitutes a well-defined

exception to the general rule against the admission of extrinsic evidence on judicial

review. However, in my opinion none of the expert reports speak to that issue.

[139] With regards to the Charter issue, the Ktunaxa assert the reports are relevant

to “properly consider the credible nature of the Ktunaxa spiritual-religious beliefs and

practices at issue in this matter, and whether the …Minister’s decision infringed

Ktunaxa citizens’ ability to practice their religion as contemplated by the Charter”.

[140] I have found that where a Charter issue is raised in substance with an

administrative decision-maker in a consultative process prior to the impugned

decision, there is an obligation on the party raising the Charter issue to put before

the decision-maker all evidence relevant to the characterisation of the asserted

Charter right. To the extent that the expert reports are tendered for this purpose, I


would also decline to admit them into evidence. That said, I have read all of these

reports and make the following observations with respect to the reports.

1. The Walker Report

[141] Deward Walker is an anthropologist. He was commissioned by the Ktunaxa to

provide a report on “how the Ktunaxa people may be affected by the construction

and operation of a ski resort in the Jumbo Valley”.

[142] The Walker Report states 15 conclusions, which might be summarized as (a)

Qat’muk is integral to the practice of Ktunaxa religion because it is the home of

grizzly bears and the Grizzly Bear Spirit, (b) Qat’muk must be protected to maintain

Ktunaxa collective and individual identity, and (c) because of its centrality within

Qat’muk the Proposed Resort threatens Ktunaxa religion in a way Panarama did not.

[143] The Ktunaxa submit that the “purpose of the Walker Report is to provide the

court with evidence regarding the Ktunaxa religion and the impact that the

desecration of Qat’muk would have. This provides the context in which the court can

then assess whether or not the Minister’s decision was reasonable”. The Ktunaxa

also say the Walker Report “provides evidence for the Charter right of the Ktunaxa

and the potential significance of an infringement”. Finally, the Ktunaxa assert the

Walker Report is:

…necessary and relevant for this court to be able to review and ascertain the factual and procedural mistakes made by the Minister. This includes the Minister’s fatal error in failing to consider and assess the Charter rights of the Ktunaxa and making a factual finding not supported by any evidence. This goes directly to breaches of procedural fairness and natural justice, and want of jurisdiction, which are established exceptions under which extrinsic evidence is admissible. For example, see Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079 (CanLII), at para. 17.

[144] The petitioner’s reliance on Ismail for this proposition is misplaced. Ismail is a

challenge to the constitutionality of a statutory provision, not a review of whether a

discretionary administrative decision appropriately balances Charter values. For this

reason the case is of limited guidance.


[145] In any event, the court in Ismail did not admit most of the tendered extrinsic

evidence. The limited evidence it did admit was as “legislative facts” that were

arguably relevant to determining the constitutionality of the impugned legislation.

[146] In Ismail at para. 41, Sigurdson J. quotes with approval from Kinexus

Bioinformatics Corporation v. Asad, 2010 BCSC 33:

[41] In Kinexus, Wedge J. also considered an application to admit new evidence and she summarized the applicable law this way:

17 The court’s power to admit evidence beyond the record of proceeding must be exercised sparingly, and only in an exceptional case. Such evidence may be admissible for the limited purpose of showing a lack of jurisdiction or a denial of natural justice. In Ross, Silverman J. said the following at paras. 26-27 after reviewing the relevant case law:

26 The general rule with respect to the admissibility of extrinsic material is that it is, except in very special circumstances, inadmissible. This is because a judicial review is a review of a decision on the tribunal’s record of proceedings. It is that very record which is the subject of the judicial review. Affidavit material describing evidence not before the tribunal or attaching documents that were not before the decision-maker is not part of that record and is generally inadmissible on judicial review. ...

27 There are, however, exceptions to the general rule where extrinsic evidence may sometimes be admissible. For example, it may be admissible for the limited purpose of showing a lack of a jurisdiction or a denial of natural justice. In circumstances where the grounds for judicial review are a breach of natural justice or procedural fairness, the petitioner may be entitled to adduce new evidence. However, the new evidence must be both relevant and necessary before it will be admissible[.]

In addition, the court may, in rare circumstances, admit affidavit evidence to show that a tribunal made a factual finding incapable of being supported by the evidence. Such affidavit evidence must be restricted to necessary references to factual errors and must not draw conclusions or interpret the evidence forming the record of proceeding. Such affidavit evidence must not be used to convert an application for judicial review into a re-hearing of the merits.

[147] The Ktunaxa do not link the Walker Report to any argument about a breach of

procedural fairness, natural justice or want of jurisdiction. The Walker Report is also

unnecessary for the Ktunaxa to argue that the Minister failed to consider Charter


rights or that the Minister made a factual finding unsupported by any evidence. The

constitutionality of legislation is also not in issue. I see nothing in Ismail that assists

the Ktunaxa’s assertion that the Walker Report should be admitted in evidence.

[148] The Ktunaxa tender the Walker Report as evidence that characterises their

asserted s. 35 and s. 2 (a) rights. It is of no assistance to assessing the consultation

process or the Minister’s balancing of Charter values. I have found that the

reciprocal obligation engaged by the consultation process required the Ktunaxa to

place before the Minister any evidence of their asserted rights. I have also found that

having raised the Charter issue, the Ktunaxa were obliged to place before the

Minister the information relevant to characterising the asserted Charter right.

[149] There is no reason why this information was not provided to the Minister prior

to his decision. The sacred nature of the area to the Ktunaxa for spiritual and or

religious reasons was squarely before the Minister. It is not open to a party to

provide significant expert opinion only after a decision-maker has rendered the

impugned decision, and then seek to rely on such opinion to support impugning the

decision. I would not admit the Walker Report for this reason.

[150] Although I would not admit the Walker Report, in order to decide this I have

read it and wish to make a few further comments on its contents. I do not find

otherwise objectionable those sections of the Walker Report that provide

background historical information on Ktunaxa religion and spirituality. However, I

view other sections as problematic for two reasons.

[151] First, any statement in the Walker Report that comments specifically on the

sacred nature of Qat’muk to the Ktunaxa relies on the affidavit evidence before me.

The Walker Report thus adds no further evidence about the importance or role of

Qat’muk specifically, although it adds conclusory statements.

[152] Second, the tenor of much of the report is objectionable as either argument or

providing conclusory statements without supporting reasoning or data. These


statements of opinion are not couched in objective language, do not lend the report

a sense of impartiality, and are not helpful to a decision-maker.

[153] No attempt is made to support many conclusory statements by the collection

of data and the application of an ascertainable and objective methodology. As stated

in Native Council at para. 25, “there are occasions where the experts go beyond

their expertise, become less than objective, and become too closely aligned with

their clients’ interests”. That seems to be the case with the Walker Report.

[154] Opinion evidence must assist the trier of fact to form an independent

conclusion by “an act of informed judgment, not an act of faith”. Binnie J., speaking

for the Court in R. v. J.-L.J., 2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600, said:

[56] In Mohan, Sopinka J. held that the expert evidence in question had to be more than merely helpful. He required that the expert opinion be necessary “in the sense that it provide information, ‘which is likely to be outside the experience and knowledge of a judge or jury’, . . . the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland, supra, McIntyre J., speaking about the inadmissibility of a polygraph test, cited, at p. 415, Davie v. Magistrates of Edinburgh, [1953] S.C. 34, at p. 40, on the role of expert witnesses where Lord Cooper said:

Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis added by Binnie J.]

The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.

[155] As there is no reasoning linking facts, or the collection of data, with many

conclusory statements, I am unable to form an independent conclusion from this

opinion. To accept the opinion would simply be a leap of faith, applying the logical

fallacy of ipse dixit, in this context, “because he said it”.

[156] In summary, where the Walker Report contains conclusory statements

without supporting reasoning or data, it is of little assistance to the court. To the


extent it simply reiterates the opinions of the affiants it likewise is of little assistance.

The Walker Report uses language that is generally argumentative and raises

concern about the author’s impartiality. For these reasons, I would neither give the

Walker Report’s conclusions much weight nor would it affect the outcome of this

judicial review were it admitted.

2. The Shaffer Report

[157] Marvin Shaffer is an economist. The Shaffer Report addresses the economic

benefits of the Proposed Resort, consistent with the principles of benefit-cost

analysis. The executive summary lists 22 points the Shaffer Report seeks to make.

The tenor of the report is that various other studies and economic analyses

suggesting that the Proposed Resort will have an economic benefit are flawed since

(1) economic impacts do not measure economic benefits; (2) government revenue

impacts do not measure economic benefits; (3) key factors were not considered and

analysis is lacking in earlier studies; (4) factors used in the analyses are

questionable; and (5) there is no reason to conclude there would be any overall net

benefit from the Proposed Resort.

[158] The author prepared an earlier report dated May 2011, which was before the

Minister. In almost all respects the Shaffer Report is redundant with the earlier

report. As stated in Mr. Shaffer’s affidavit, apart from inserting comments to conform

to the Supreme Court Civil Rules, the report only updates figures and provides

clarifications. It thus adds nothing substantive to the earlier report except to provide

updated figures, albeit ones which were not before the Minister. I admit the Shaffer

Report.

3. The Proctor Report

[159] Michael Proctor is a biologist. The Ktunaxa asked him to give an opinion

about the possible consequences of the Proposed Resort on the Purcell Mountain

Grizzly Bear. The thrust of the Proctor Report is that the Proposed Resort will

increase mortality, decrease habitat security, and fragment the grizzly bear

populations in the area.


[160] Dr. Proctor concludes that it will be difficult to mitigate the three most pressing

issues (1) increased mortality; (2) decreased habitat effectiveness; and (3)

population fragmentation. Glacier’s Grizzly Bear Management Plan is inadequate to

mitigate these impacts. The Purcell Mountain grizzly bear population is depressed.

To recover it will be necessary to strike a better balance between human use and

wildlife needs. Inserting the Proposed Resort in the centre of the range will increase

the challenge of achieving the requisite balance.

[161] Dr. Proctor has been involved in consultations regarding the Proposed Resort

project for some years. He participated in a workshop on grizzly bears in November

2006, which was part of the “gap analysis”. Dr. Proctor was retained by the Crown in

2009 in furtherance of developing a grizzly bear management strategy. Many of the

articles and communications before the Minister contained the data and earlier

opinions of Dr. Proctor.

[162] The Ktunaxa say that the Proctor Report goes to the adequacy of the

accommodation offered, citing Wii’litswx v. British Columbia (Ministry of Forests),

2008 BCSC 1139 at para. 16-17. The Ktunaxa assert that the Proctor Report is not

tendered “…to try to demonstrate what the Minister ought or ought not to have done,

but rather to aid the Court in its consideration of the adequacy of accommodation

offered in relation to a key concern of the petitioners”.

[163] In Wii’litswx, Neilson J., as she then was, said at paras. 16-17:

[16] The adequacy of the consultation process is governed by a standard of reasonableness. There is some inconsistency in the authorities, however, as to the proper focus of that analysis. In Haida, at para. 63, the Court indicated that the focus should not be on the outcome, but on the process of consultation and accommodation. However, in Gitxsan First Nation v. British Columbia (Minister of Forests), 2004 BCSC 1734 at para. 63, 38 B.C.L.R. (4th) 57 [Gitxsan No. 2] Tysoe J., in applying the principles from Haida and Taku, took what appears to be an opposing view, holding that the focus must be on the overall result:

63 In assessing the adequacy of the Crown's efforts to fulfil its duty to consult and accommodate, the court will usually look at the overall offer of accommodation made by the Crown and weigh it against the potential impact of the infringement on the asserted Aboriginal interests having regard to the strength of those asserted interests.


The court will not normally focus on one aspect of the negotiations because the process of give and take requires giving in some areas and taking in other areas. It is the overall result which must be assessed.

[17] In my view, this apparent conflict is reconciled by the approach set out at paras. 39-44 of Taku. There, the Court followed a two stage analysis, each stage being governed by a standard of reasonableness. First, it addressed the adequacy of the process of consultation. Second, having found it to be reasonable, it examined the end result by considering whether that consultation had identified a duty to accommodate aboriginal concerns, and the adequacy of any resulting accommodations.

[164] This statement from Wii’litswx does not assist in determining whether the

Proctor Report should be admitted into evidence.

[165] Extrinsic evidence is admissible to the extent that it illustrates the nature of

the consultation process and resulting accommodation. However, it is for the

reviewing court to determine whether Crown consultation efforts and the

accommodation offered is reasonable.

[166] The Proctor Report does not helpfully illustrate the process of consultation

and accommodation. Rather it opines that the accommodation offered is inadequate.

As this evidence was not before the Minister, at least not in this form, I cannot see

on what ground it should be admitted and therefore decline to do so. The court’s role

on judicial review is not to adjudicate between competing scientific views on the

adequacy of mitigation measures for wildlife populations. This is especially so where

a process was in place to address these impacts, the result of which was the issued

and subsequently renewed EAC.

[167] That said, it is apparent that the EAC, the MP, and the MDA contemplate

significant accommodation measures to address grizzly bear issues as well as

ongoing measures to monitor the grizzly bear population. The proposed

accommodation measures include the creation of a 55,000 hectare WMA, with

ongoing environmental monitoring.

[168] Glacier attacks the Proctor Report as being based on assumptions regarding

road developments, including a “major highway” that is not contemplated as part of


the MDA for the Proposed Resort. Any such road developments would thus be

subject to their own environmental assessment and First Nations review. Glacier

also says that it is not clear whether Dr. Proctor is aware of the many EAC

conditions to which the Proposed Resort is subject, as they are not referred to in his

report.

[169] Although I do not admit the Proctor Report, even if it was in evidence I am

unable to conclude that the accommodation measures for grizzly bears are

unreasonable, or that together with the ongoing monitoring proposed, and any

resulting recommendations, they are unlikely to accomplish their objectives.

4. The Brealey Report

[170] Dr. Brealey is a historical geographer. He was engaged to provide an expert

report on Ktunaxa use, occupancy, and historical continuity of presence in the Toby

Creek-Jumbo Pass watershed area. During oral submissions, the Ktunaxa said they

would not be relying on Dr. Brealey’s evidence except for the point that the

Proposed Resort lies at the geographic centre of the Ktunaxa’s “traditional territory”.

[171] In a reply affidavit, which addressed concerns about the description of

Qat’muk, Dr. Brealey deposed that Qat’muk is “an ethnographic, not a topographic

landscape” and he cannot fix any boundaries to it. The map produced in the report is

not supposed to be “geographically accurate”. Further “from the point of view of

spiritual attachment and the importance of the grizzly bear spirit complex,… there

can be no fixed area boundary between Qat’muk and its surrounding area….” (my

emphasis).

[172] This petition is not an adjudication of the Ktunaxa’s claim to aboriginal title.

Further, the Ktunaxa have not, at least in this proceeding, challenged the Minister’s

finding that they have only a weak claim to aboriginal title in the Proposed Resort

area. For the purposes of this proceeding I accept that the Proposed Resort is within

an area which some sources have described as Qat’muk. As such, there is no

reason to admit the Brealey Report. I note that even were it admitted, it would not

alter the outcome of this proceeding.


5. The Candler Report

[173] The Ktunaxa say that the Candler Report could have been before the Minister

because it was offered. The Candler Report discusses some earlier studies by

authors such as Schaeffer and Turney-High, who were referenced in some of the

information before the Minister. In my opinion the Candler Report provides

appropriate context and explanation for materials that were before the Minister. As it

was offered to the Minister, I find it should be before the Court.

VI. The Duty to Consult and Accommodate

[174] The Ktunaxa frame this issue as follows:

Was the Minister’s Decision to Approve the MDA on March 20, 2012 a violation of the Crown’s constitutional obligation to uphold the honour of the Crown in its dealings with the Ktunaxa?

[175] As mentioned above, although the Ktunaxa frame the question in this

manner, the specific aboriginal right they describe as being at issue is the right to

“exercise a spiritual practice which by its nature requires the protection of a sacred

site”. The Ktunaxa claim that the Minister failed to fulfill the constitutional obligation

to consult and accommodate in respect of this particular asserted aboriginal right.

Law

1. The Interpretation of Section 35(1)

[176] Section 35(1) of the Constitution Act, 1982 provides:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of

Canada are hereby recognized and affirmed.

[177] In the seminal case of R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1105, it was

recognised “that s. 35(1) of the Constitution Act, 1982, represents the culmination of

a long and difficult struggle in both the political forum and the courts for the

constitutional recognition of aboriginal rights.”


[178] Section 35(1) must be understood in light of its purposes, as stated in

Sparrow at 1106:

The approach to be taken with respect to interpreting the meaning of s. 35(1) is derived from general principles of constitutional interpretation, principles relating to aboriginal rights, and the purposes behind the constitutional provision itself.

[179] Chief Justice Lamer clarified the rationale for taking a purposive approach to

interpreting s. 35 in R v. Van der Peet, [1996] 2 S.C.R. 507 at 535:

… In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, Dickson J. explained the rationale for a purposive approach to constitutional documents. Courts should take a purposive approach to the Constitution because constitutions are, by their very nature, documents aimed at a country's future as well as its present; the Constitution must be interpreted in a manner which renders it "capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers": Hunter, supra, at p. 155. A purposive approach to s. 35(1), because ensuring that the provision is not viewed as static and only relevant to current circumstances, will ensure that the recognition and affirmation it offers are consistent with the fact that what it is recognizing and affirming are "rights".

[180] A purposive interpretation of s. 35 “must take place in light of the general

principles which apply to the legal relationship between the Crown and aboriginal

peoples”: Van der Peet at 536 (emphasis added). The Crown has a fiduciary

obligation to aboriginal peoples which means that “in dealings between the

government and aboriginals the honour of the Crown is at stake”: Van der Peet at

537 (emphasis added).

[181] Because of this relationship, s. 35(1) must be given a generous and liberal

interpretation, with any ambiguity resolved in favour of aboriginal peoples. As stated

in Van der Peet at 537:

… s. 35(1), and other statutory and constitutional provisions protecting the interests of aboriginal peoples, must be given a generous and liberal interpretation: R v.George, [1966] S.C.R. 267, at p. 279. This general principle must inform the Court’s analysis of the purposes underlying s. 35(1), and of that provision’s definition and scope.

The fiduciary relationship of the Crown and aboriginal peoples also means that where there is any doubt or ambiguity with regards to what falls within


the scope and definition of s. 35(1), such doubt or ambiguity must be resolved in favour of aboriginal peoples.

[182] Identifying s. 35(1)’s purposes requires understanding the rationale for the

provision, which in turn requires identifying the basis for Aboriginal peoples’ special

status in Canada. As stated in Van der Peet at 537:

When the court identifies a constitutional provision's purposes, or the interests the provision is intended to protect, what it is doing in essence is explaining the rationale of the provision; it is articulating the reasons underlying the protection that the provision gives. With regards to s. 35(1), then, what the court must do is explain the rationale and foundation of the recognition and affirmation of the special rights of aboriginal peoples; it must identify the basis for the special status that aboriginal peoples have within Canadian society as a whole.

[183] Chief Justice Lamer articulates the reasons underlying s. 35(1)’s protection of

Aboriginal rights in Van der Peet at 538-539:

In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status. [Emphasis added]

[184] Having articulated the reasons underlying s. 35(1)’s protection of Aboriginal

rights, the Chief Justice then identifies s.35(1)’s purpose in Van der Peet at 538:

… what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.


[185] To fulfill this purpose requires a test for identifying Aboriginal rights which

identifies the practices, traditions and customs central to the aboriginal societies that

existed in North America prior to contact with the Europeans. As stated in Van der

Peet at 548:

In order to fulfil the purpose underlying s. 35(1) -- i.e., the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions -- the test for identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies. It must, in other words, aim at identifying the practices, traditions and customs central to the aboriginal societies that existed in North America prior to contact with the Europeans.[Emphasis added]

2. The Honour of the Crown

[186] The phrase ‘honour of the Crown’ refers to the principle that Crown servants

must conduct themselves with honour when acting on the sovereign’s behalf:

Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para.

65.

[187] The relationship between the honour of the Crown and s. 35(1) is explained in

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),

2004 SCC 74 [Taku] at para. 24:

[24] … The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s.35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s.35(1).

3. The Duty to Consult and Accommodate

[188] The duty to consult and accommodate is founded in both the honour of the

Crown and the goal of reconciliation.


[189] Consultation and accommodation before final claims resolution is an essential

corollary to the honourable process of reconciliation that s. 35 demands. This is

because it preserves the Aboriginal interest pending claims resolution and fosters a

relationship between the parties that makes possible negotiations, the preferred

process for achieving ultimate reconciliation: Haida at para. 38.

[190] In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 [Rio

Tinto], the Supreme Court of Canada emphasized the protective purpose of the duty

to consult and accommodate, noting that the duty is grounded in the need to protect

Aboriginal rights and to preserve the future use of resources claimed by Aboriginal

peoples: at paras. 33-34, 41, 50, 53 & 83.

[191] The duty to consult arises “when the Crown has knowledge, real or

constructive, of the potential existence of the Aboriginal right or title and

contemplates conduct that might adversely affect it”: Haida at para. 35.

[192] Three basic factors determine whether the duty to consult is triggered in any

given situation: (1) the Crown's knowledge, actual or constructive, of a potential

Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that

the contemplated conduct may adversely affect an Aboriginal claim or right: Rio

Tinto at para. 31. Adverse impacts extend to any effect that may prejudice a pending

Aboriginal claim or right: Rio Tinto at para 47.

4. The Scope of the Duty

[193] The scope of the duty to consult varies with the circumstances and exists

along a spectrum. Generally, it depends on (a) a preliminary assessment of the

strength of the Aboriginal rights asserted and (b) the seriousness and likelihood of

the potential adverse effect of the contemplated Crown conduct on those asserted

rights: Haida at para. 39.

[194] In Haida, the Supreme Court of Canada said at paras. 43-45:

[43] Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful,


not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61.

[44] At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.

[45] Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

[195] Meaningful consultation is a process that involves gathering information,

sharing preliminary proposals, seeking opinions, informing other parties of relevant

information, listening, being prepared to alter and adapt the original proposal, and

providing feedback. In short, the process is one which involves two or more parties

and ensures the parties are consulted and leave better informed.

[196] Good faith consultation may reveal a duty to accommodate. For example, a

strong prima facie Aboriginal rights claim coupled with significant potential impacts of

the contemplated Crown conduct on those rights might require the Crown to take


steps to avoid irreparable harm or minimize the potential impacts, pending final

resolution of the underlying Aboriginal rights claim: Haida at para. 47.

[197] The duty to accommodate does not, however, give Aboriginal groups a veto

over that can be done with land pending final proof of the Aboriginal claim. Rather,

the duty requires a balancing of interests, of give and take: Haida at para. 48. As

stated in Taku at para. 2:

[2] … Where consultation is meaningful, there is no ultimate duty to reach agreement. Rather, accommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns. Compromise is inherent to the reconciliation process…

5. The Standard of Review

[198] The standard of review that applies to Crown consultation, and if necessary

accommodation, is described in Haida at paras. 60-63:

60 Where the government’s conduct is challenged on the basis of allegations that it failed to discharge its duty to consult and accommodate pending claims resolution, the matter may go to the courts for review. To date, the Province has established no process for this purpose. The question of what standard of review the court should apply in judging the adequacy of the government’s efforts cannot be answered in the absence of such a process. General principles of administrative law, however, suggest the following.

61 On questions of law, a decision-maker must generally be correct: for example, Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard


will likely be reasonableness: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.

62 The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right in question”: Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, “in . . . information and consultation the concept of reasonableness must come into play. . . . So long as every reasonable effort is made to inform and to consult, such efforts would suffice.” The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty

63 Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government’s process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.

[199] Absent an error of law, the standard is reasonableness.

6. Process v. Outcomes

[200] The duty to consult is focused on process, not outcomes; i.e., absent an error

of law reviewable to a standard of correctness, the reviewing court’s focus will be on

the reasonableness of the process of consultation and accommodation: Haida at

para 63.

[201] The ultimate question in each case is whether the consultation was sufficient:

Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at paras. 38-39.

[202] Administrative law principles are capable of taking into account the

constitutional dimension of an Aboriginal group’s rights to consultation. The

Supreme Court of Canada states in Beckman at paras. 44-47:

[44] The respondents’ submission, if I may put it broadly, is that because the duty to consult is “constitutional”, therefore there must be a reciprocal constitutional right of the First Nation to be consulted, and constitutional rights of Aboriginal peoples are not subject to abrogation or derogation except as can be justified under the high test set out in Sparrow. On this view, more or less every case dealing with consultation in the interpretation and implementation of treaties becomes a constitutional case. The trouble with this argument is that the content of the duty to consult varies with the


circumstances. In relation to what Haida Nation called a “spectrum” of consultation (para. 43), it cannot be said that consultation at the lower end of the spectrum instead of at the higher end must be justified under the Sparrow doctrine. The minimal content of the consultation imposed in Mikisew Cree (para. 64), for example, did not have to be “justified” as a limitation on what would otherwise be a right to “deep” consultation. The circumstances in Mikisew Cree never gave rise to anything more than minimal consultation. The concept of the duty to consult is a valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose.

[45] The LSCFN invited us to draw a bright line between the duty to consult (which it labelled constitutional) and administrative law principles such as procedural fairness (which it labelled unsuitable). At the hearing, counsel for the LSCFN was dismissive of resort in this context to administrative law principles:

[A]dministrative law principles are not designed to address the very unique circumstance of the Crown-Aboriginal history, the Crown-Aboriginal relationship. Administrative law principles, for all their tremendous value, are not tools toward reconciliation of Aboriginal people and other Canadians. They are not instruments to reflect the honour of the Crown principles. [transcript, at p. 62]

However, as Lamer C.J. observed in R. v. Van der Peet, [1996] 2 S.C.R. 507, “aboriginal rights exist within the general legal system of Canada” (para. 49). Administrative decision makers regularly have to confine their decisions within constitutional limits: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; and Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256. In this case, the constitutional limits include the honour of the Crown and its supporting doctrine of the duty to consult.

[46] The link between constitutional doctrine and administrative law remedies was already noted in Haida Nation, at the outset of our Court’s duty to consult jurisprudence:

In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law. [Emphasis added; para. 41.]

The relevant “procedural safeguards” mandated by administrative law include not only natural justice but the broader notion of procedural fairness. And the content of meaningful consultation “appropriate to the circumstances” will be shaped, and in some cases determined, by the terms of the modern land claims agreement. Indeed, the parties themselves may decide therein to exclude consultation altogether in defined situations and the decision to do so would be upheld by the courts where this outcome would be consistent with the maintenance of the honour of the Crown.


[47] The parties in this case proceeded by way of an ordinary application for judicial review. Such a procedure was perfectly capable of taking into account the constitutional dimension of the rights asserted by the First Nation. There is no need to invent a new “constitutional remedy”. Administrative law is flexible enough to give full weight to the constitutional interests of the First Nation. Moreover, the impact of an administrative decision on the interest of an Aboriginal community, whether or not that interest is entrenched in a s. 35 right, would be relevant as a matter of procedural fairness, just as the impact of a decision on any other community or individual (including Larry Paulsen) may be relevant.

Analysis

1. Unchallenged earlier regulatory approvals

[203] The Proposed Resort went through a number of regulatory reviews before the

development and approval of the MDA. Though the particular project specifications

considered in these processes differed in some ways from the ultimate concept for

the Proposed Resort approved in the MDA, the essential character of the Proposed

Resort has been consistent from the beginning: a year-round ski resort in the Upper

Jumbo Valley. The Minister and Glacier rely on these earlier review processes and

the nature of Ktunaxa participation in them to support their argument that the

consultation and accommodation of the Ktunaxa’s asserted Aboriginal rights was

reasonable.

[204] These review processes are described in some detail earlier in these

reasons. In summary, the regulatory reviews that the Minister and Glacier seek to

rely on include:

1. 1991-1993: Glacier’s initial proposal for the Proposed Resort was

reviewed under the CASP and Glacier was granted sole proponent status.

The KKTC participated and submitted a position paper outlining their

opposition to the Proposed Resort. The subsequent development of a MP

and ultimately a MDA was explicitly contemplated under the CASP.

2. 1993-1995: The Proposed Resort was reviewed as part of the CORE

land use planning process that involved numerous public meetings. The

KKTC participated as an observer and the CLIB outlined specific concerns.


The CORE review assigned high recreation and tourist values to the Upper

Jumbo Valley. Following this review, the Province released the KBLUP which

identified a ski resort development as an acceptable land use for the Upper

Jumbo Valley. Glacier and the Minister entered an interim agreement in

respect of the Proposed Resort at this time.

3. 1995-2004: Environmental assessment review of the Proposed Resort

took place over nine years. The KKTC, SIB, and CLIB were extensively

involved and were invited to participate in the technical review committee and

comment on the Project Report submitted by Glacier. Funding was provided.

Though submitted under protest at the amount of funding offered, the KKTC

gave detailed comments in 2004 on the measures proposed by the EAO to

address their concerns regarding the Proposed Resort. The KKTC took the

position that the Jumbo Valley is invested with sacred values and that Glacier

should be required to attempt to negotiate an IMBA with the KKTC. The EAC

was issued in 2004 and required Glacier to attempt to negotiate an IMBA with

the KKTC before submitting the final MP. At least 10 of Glacier’s

commitments in the EAC are specifically related to grizzly bear management

and minimising impacts of the Proposed Resort on grizzly bears. The EAC

was extended in 2009 for five more years.

4. 2005-2007: Glacier submitted a Draft MP for the Proposed Resort in

2005 which was accepted for review under the CASP. The Draft MP was

reviewed from December 2005 to July 2007. The Minister consulted

specifically with the Ktunaxa. In June 2006, a consultant retained by the

Ktunaxa but funded by the Minister prepared a Gap Analysis that identified

Ktunaxa concerns outstanding from the EAC and Draft MP. The Minister and

Ktunaxa subsequently entered a Consultation Agreement pursuant to which a

series of meetings, workshops and studies took place. Among other things,

land use issues and the Proposed Resort’s potential impact on grizzly bears

were addressed. From these discussions, a document was created that

identified a conceptual framework for specifically accommodating Ktunaxa


concerns about sacred values in the Jumbo Valley. This framework outlined

measures such as establishing a conservancy, establishing a WMA, land

transfers, and the creation of land reserves. The Minister also received

correspondence from Glacier indicating that an agreement in principle had

been reached with the Ktunaxa. The Minister approved the MP in July 2007,

which incorporated numerous changes in response to different concerns,

including those of the Ktunaxa. The Minister also specifically advised the

Ktunaxa that MP approval did not preclude additional mitigation measures

being included in the MDA.

5. 2007-2009: In December 2007, the Minister presented a formal

accommodation offer to the Ktunaxa, which included land transfers and the

sharing of economic benefits. The Minister advised that a conservancy was

not viable but that co-management of a WMA would be pursued. This offer

was rejected in February 2008, but the reasons for rejection did not say the

Jumbo Valley’s sacred values were insufficiently accommodated. Rather, the

Ktunaxa took the position that the financial components of the offer were

insufficient and objected to the equal financial accommodation provided to the

SIB. The Minister made a second accommodation offer in September 2008

that was rejected in December 2008. In January 2009 both the Minister and

the Ktunaxa gave formal notice of their intention to enter a process to

negotiate an accommodation and benefits agreement. In May 2009, the

Ktunaxa provided the Minister with an updated list of their outstanding

concerns regarding the Proposed Resort. The Jumbo Valley’s sacred nature

was not clearly listed as one of those concerns. In early June 2009, the

Minister advised the Ktunaxa that in the Minister’s opinion a reasonable

consultation process had occurred and a decision could be made on the MDA

while the negotiation of a benefits agreement with the Ktunaxa was still

ongoing. At a subsequent meeting that month, the Ktunaxa took the position

that the Minister had not properly accommodated the Ktunaxa’s concerns

about the Jumbo Valley’s sacred nature. The Minister agreed to extend the

consultation process until December 2009 to specifically address the issue of


sacred values. In September 2009, the Ktunaxa made it clear that there were

no possible measures that would both accommodate the Jumbo Valley’s

sacred values and allow the Proposed Resort to proceed.

[205] The Minister says that when reviewing the procedural aspects of the duty to

consult, it is appropriate to consider all these past regulatory processes. I agree.

[206] The case law supports this position. For example, in Brokenhead Ojibway

First Nation v. Canada (Attorney General), 2009 FC 484, the Federal Court

dismissed applications by seven Treaty One First Nations seeking declaratory and

other prerogative relief against Enbridge Pipelines Inc., the Attorney General of

Canada, and the National Energy Board in connection with Crown decisions to

approve three pipeline projects in Saskatchewan and Manitoba. The court found that

available, adequate, and accessible regulatory processes which allow First Nations

to participate in a meaningful way should be used, and a failure to use such

processes does not justify a demand for separate or discrete consultation (at para.

42). In Taku, the Supreme Court of Canada found that participation in an earlier

environmental assessment of a project satisfied the Crown’s duty to consult and

accommodate.

[207] In this case there was some participation by the Ktunaxa in the initial CASP

review, the CORE review, the environmental review, and the MP review. There was

no court challenge to the approval of those regulatory processes.

[208] While not dispositive of this case, the fact that those earlier regulatory

approvals were not challenged is noteworthy because the Ktunaxa’s position is that

no accommodation of their asserted right is possible. This position lies at the

extreme end of the spectrum of required accommodation and is, in essence, seeking

to veto the MDA and the Proposed Resort entirely. Regardless of the doctrine of

secrecy surrounding Ktunaxa religious practices and beliefs, one would reasonably

expect such a staunch position to be articulated at the earliest available opportunity

as it strikes at the very heart of the object of the regulatory processes already

undertaken.


[209] The exercise of administrative discretion cannot be used as a tool to

undermine the existing rights of the applicant, even if it is asserted that doing so

would protect asserted Aboriginal interests. As Groberman J.A., speaking for the

Court of Appeal, notes in Louis v. British Columbia (Minister of Energy, Mines, and

Petroleum Resources), 2013 BCCA 412 at paras. 81-83:

[81] The existence of a duty to consult, does not, …, represent an invitation to the Crown to exercise its powers in an arbitrary or capricious manner, even if it is asserted that by doing so, it might be able to protect asserted interests of First Nations. A new application for regulatory approval must be considered on its merits, and where it will affect asserted Aboriginal rights, the Crown must engage in consultation. It cannot, however, abuse its regulatory discretion by using the application as a tool to undermine the existing rights of the applicant.

[82] If, for example, a critical piece of machinery installed in the mill broke down and had to undergo an electrical safety inspection prior to being returned to operation, no one would suggest that an electrical safety inspector was entitled to withhold approval on the basis that such a refusal would shut down the mine and thereby provide greater protection for claimed Aboriginal rights. Such a decision would exceed the limits of the discretion given to the electrical safety inspector.

[83] I do not suggest that the decisions at issue in this appeal are directly analogous to an electrical safety inspection. Nonetheless, the discretion of the MEMPR to reject the application for approval of a new mill was not unbounded. The MEMPR was not entitled to use the application as a backdoor process for the elimination of rights already held by Thompson Creek Metals.

[210] I say the lack of a challenge to the earlier regulatory processes is only

noteworthy and not dispositive of matters because, in my view, reconciliation is best

achieved outside the courtroom and through negotiation. I agree with the Ktunaxa

that a First Nation should not be penalized for continuing to negotiate rather than

initiating legal challenges at the first or each available opportunity. The

commendable resolve to negotiate rather than litigate does not, however, absolve a

First Nation from articulating early in negotiations the specific basis on which they

oppose any particular project. Identifying the asserted Aboriginal right and the basis

of the concern guide the whole process of consultation and accommodation. This

specifically involves identifying what particular aspect of the contemplated Crown

conduct infringes the Aboriginal right and why does it do so. Only by addressing


these questions early on in negotiations can the process of consultation and

accommodation properly achieve the salutary goal of reconciliation.

2. MDA approval

[211] From mid-2009 onwards the Ktunaxa took the position that no

accommodation was possible.

[212] In mid-2010, the Minister provided the Ktunaxa with a draft

Consultation/Accommodation Summary for review that described the consultation

with and accommodation offered to the Ktunaxa since 1991 in respect of the various

Aboriginal Rights they assert. Among many other things with respect to the

Ktunaxa’s claims to Aboriginal rights and title, including their claims about the Jumbo

Valley being a sacred site:

(a) the claim to Aborignal title was weak due to lack of evidence of

exclusive use of the area;

(b) the Ktunaxa had not identified any practices in the area of the

Proposed Resort associated with the spiritual claim;

(c) the SIB was the closest Aboriginal community to the Proposed Resort,

supported the ski resort, and had entered into an IMBA with Glacier; and,

(d) only 0.7% of the Jumbo Valley was proposed for development as a

base area for the Proposed Resort.

[213] During 2010 the Minister negotiated with other provincial ministries and

government agencies to establish a WMA in order to address Ktunaxa concerns

about the residual impacts of the Proposed Resort on grizzly bears and grizzly bear

habitat. In October 2010, approval was granted to establish a WMA of 55,000

hectares, including parts of the Upper Glacier Creek Valley, the Starbird Pass area,

and the Jumbo and Toby Creek valleys.


[214] The Ktunaxa provided the Minister with a list of Aboriginal rights they assert

in Qat’muk, in addition to their Aboriginal title claim, in a memo dated July 20, 2011,

which was attached to a letter to the Minister dated July 28, 2011. The asserted

Aboriginal rights include:

the right to continue to practice and benefit from a spiritual-religious

relationship with Grizzly Spirit, individually and collectively, in traditional

ceremonies, songs and dances;

the right to continue the tradition of vision quests and other spiritual-religious

practices seeking and benefiting from Grizzly Spirit’s special guidance,

whether for the sake of the individual or the community;

the right to continue to journey, individually and collectively, to Grizzly Spirit’s

home to experience his presence and power, and take away and share the

benefits of the experience;

the right to maintain our people’s kinship with grizzly bears and to continue

our traditional practices expressing our kinship;

the right to continue to join, individually and collectively, with our brother and

sister grizzlies at Qat’muk, whether in times of celebration or in times of

difficulty;

the right to transmit cultural knowledge and practice regarding Grizzly Spirit,

grizzly bears and other related matters associated with Qat’muk and

particularly to transmit such knowledge and practice in those places within

Qat’muk best suited for these purposes;

the right to an easement in Qat’muk that is both positive (i.e. as to what we

may do) and negative (i.e. as to what the Crown and/or those who act with its

blessing may not do);

the right to hunt deer, elk and other animals;

the right to fish;

the right to harvest berries;


the right to harvest medicinal plants and materials;

the right to access and temporary occupation; and

the right to hunt and harvest grizzly bears for ceremonial purposes.

[215] On November 15, 2011, the Ktunaxa met with the Minister, Assistant Deputy

Minister, and the Minister of Aboriginal Relations and Reconciliation at the BC

Legislature in Victoria. The Ktunaxa again voiced their opposition to the Resort.

[216] On December 14, 2011, the Assistant Deputy Minister met with the Ktunaxa

in Cranbrook, BC, and shared the draft briefing binders for the Minister’s

consideration in deciding whether to approve the MDA.

[217] By letter dated December 20, 2011, the Minister advised the Ktunaxa that

$1,000,000 in funding would be made available over a ten year period to (a) support

the Ktunaxa’s participation in the development of a management plan for the

proposed WMA adjacent to the Proposed Resort; (b) fund studies to support the

development of a management plan for the WMA; and (c) fund the implementation

and communication of recommendations from those studies.

[218] By letter dated December 23, 2011, the Ktunaxa outlined their concerns with

the adequacy of the briefing binders.

[219] By letter dated January 3, 2012, the Ktunaxa were informed that the briefing

binders would not be revised but that any additional information provided by the

Ktunaxa before January 23, 2012, would be placed before the Minister alongside the

briefing binders. The Ktunaxa responded by email dated January 17, 2012. The

Ktunaxa also sought meetings with several different Ministers and the Premier.

[220] On February 8, 2012, the Ktunaxa met with the Deputy Minister and the

Minister for Aboriginal Relations and Reconciliation in Vancouver. The Ktunaxa

provided each with a letter and additional documents which they wished to be put

before the Minister.


[221] On March 20, 2012, the Minister approved the MDA and provided the

Ktunaxa with a written rationale for doing so. As noted earlier, the Minister’s

Rationale is attached to these reasons and marked as Schedule “F”.

4. Was the consultation process reasonable?

[222] The Ktunaxa claim that the Minister failed to fulfill a constitutional duty to

consult and accommodate specifically in respect of the Ktunaxa’s asserted

Aboriginal right to “exercise a spiritual practice which by its nature requires the

protection of a sacred site”. The Ktunaxa assert that despite an abundance of

available evidence that Ktunaxa spiritual practices and beliefs were at issue, the

Minister’s Rationale never even assessed this asserted Aboriginal right. The

Ktunaxa argue that the consultation in respect of this asserted Aboriginal right was

cavalier at best, even though the Minister acknowledged the required scope of

consultation to be deep.

[223] The Minister’s Rationale makes specific reference to the Ktunaxa’s spiritual

beliefs and quotes from within the seven pages of the Consultation/Accommodation

Summary devoted to describing the consultation and accommodation in respect of

the Ktunaxa’s assertion that the Jumbo Valley is sacred. In particular, the Minister’s

Rationale quotes the following statement from the Consultation/Accommodation

Summary:

The Minister sincerely recognises the genuinely sacred values at stake for the Ktunaxa leadership and the Knowledge Keepers in particular, however it has determined on a preliminary that a prima facie claim to an aboriginal right of this nature is weak. …

[224] The Minister’s Rationale then details some reasons why the Minister believes

the claim for the asserted spiritual right to be weak. Overall, however, the Minister’s

Rationale states the Minister’s belief that “the consultation applied in this case is at

the deep end of the spectrum and having regard to the accommodation measures, is

adequate in respect of those rights for which the strength of claim is strong, and for

which potential impacts of the project could be significant”.


[225] Since the development process for the Proposed Resort began in 1991, the

Ktunaxa have raised many concerns and asserted that a number of Aboriginal rights

are at issue. The Minister has undertaken consultation and offered accommodation

in respect of this myriad of concerns and asserted rights. The Minister determined

that the prima facie claim to some of the asserted Aboriginal rights was strong,

including the right to hunt, fish and gather berries, and the claim to others weak,

including the claim to Aboriginal title and the asserted Aboriginal spiritual right.

Overall, the Minister believes deep consultation took place and adequate

accommodation was offered in respect of those asserted rights with a strong prima

facie claim.

[226] In this petition, the Ktunaxa assert that the Minister failed the duty to consult

and accommodate in respect of one asserted Aboriginal right. This raises the

question: how should the reviewing court determine the reasonableness of a

consultation process aimed at addressing multiple asserted rights where that

process is impugned in respect of just one of the asserted rights? And in this case, a

right for which the Minister deemed the prima facie strength of claim to be weak?

[227] In my opinion, where it is possible to do so, the reviewing court should first

examine those parts of the consultation process where the specific aboriginal right at

issue was directly addressed. After that, however, I think the court must consider the

reasonableness of the consultation in respect of that particular Aboriginal right within

the context of the broader consultation undertaken for the myriad of other concerns

and Aboriginal rights asserted by the First Nation.

[228] This case is somewhat idiosyncratic because the asserted right that the

Ktunaxa claim the Minister failed to properly consult about was only elevated to a

status of “primary concern” late in a very long consultation process.

[229] The Ktunaxa first elevated their concern for the sacred values in Qat’muk to

the principal ground on which they say no accommodation is possible in June 2009.

By that time, the Proposed Resort had undergone the CASP review and the CORE

review, had been issued an EAC, and had had the MP approved. These processes


took over 15 years and involved extensive opportunity for the Ktunaxa to express

their concerns regarding the Proposed Resort and efforts were made to

accommodate those concerns through changes to the specifications of the Proposed

Resort and other measures.

[230] Further, when the Ktunaxa did say that no accommodation of the Proposed

Resort is possible, it seems that their position was based on the epiphanial reflection

of one elder which arose in 2004 but was only communicated to third parties in

2009. The specific belief was not widely held among the Ktunaxa.

[231] Despite this, nearly three years of further discussions and negotiations with

the Ktunaxa followed before the MDA was approved in 2012. There continued to be

further offers of accommodation. Meetings took place between the Ktunaxa and

Crown Ministers; that is, meetings involving persons at the highest level of

government decision-making. I described those meetings above. They included

focused discussion on concerns about grizzly bear populations which the Ktunaxa

tied to their religious and spiritual beliefs. These meetings respected the asserted

secrecy with which the Ktunaxa hold their religious beliefs.

[232] Of course, the period of time over which consultation arises does not speak to

the quality of the consultation. However, I cannot agree that the process is indicative

of the cavalier attitude that the Ktunaxa assert. In my opinion, when the focused

consultation since 2009 is considered in the context of the extensive and broader

consultation undertaken since 1991, the Minister’s consultation in respect of the

Ktunaxa’s asserted spiritual claims was reasonable and appropriate.

[233] I agree with the Minister that deep consultation was undertaken in respect of

this asserted spiritual right. I say this because I make no comment on whether the

Minister correctly determined that the prima facie strength of claim for this asserted

right is weak. Rather, I find that the consultation process would also be reasonable if

the prima facie strength of claim for this asserted right is strong.


5. Was reasonable accommodation offered?

[234] The effect of good faith consultation may reveal a duty to accommodate, and

the content of that duty will vary with the circumstances. This is not a case, however,

where the issue is whether a duty to accommodate exists in the face of little or no

accommodation offered. Rather, it is a case where significant accommodation was

offered yet the First Nation asserts that the accommodation required to fulfill the duty

amounts to a cessation of the contemplated Crown conduct; namely that the MDA

should be quashed and the Proposed Resort cannot proceed. As such, I approach

this issue as though a duty to accommodate does exist, whereby the

accommodation offered is subject to a reasonableness standard of review.

[235] The Ktunaxa say that the Minister’s Rationale represents a “summary

disregard” of Ktunaxa cultural and spiritual rights. The Ktunaxa argue that the

Proposed Resort will destroy the core of Qat’muk, a sacred area that should be left

alone as a place of spiritual importance and home to the Grizzly Bear Spirit. That

position is reflected in the Qat’muk Declaration where the Ktunaxa assert a right to

refuse to permit, within defined parts of Qat’muk, (a) the construction of buildings

with permanent foundations, (b) permanent occupation of residences, and (c)

disturbance of the ground.

[236] The Minister and Glacier say that extensive changes were made to the

Proposed Resort during the various regulatory processes to accommodate Ktunaxa

concerns and asserted Aboriginal rights. These accommodations include:

(a) reduction of the CRA for the Proposed Resort by approximately 60%

from the original proposal (from 14,866 hectares to 5,935 hectares);

(b) exclusion of the Lower Jumbo Creek area from the CRA;

(c) reduction of the Proposed Resort base area, including all residential

lots and lift-access parking, to 104 hectares, which keeps it entirely within the

logged area around the former sawmill site in Upper Jumbo Creek. Glacier

says this makes it the most compact ski resort in BC. By comparison

Whistler’s base area is 12,950 hectares, over 100 times larger, and nearby


Panorama’s is 336 hectares: Table 4.2 on page 52 of the MP Executive

Summary;

(d) reduction of the Proposed Resort bed base to 5,500 tourist bed-units

and 750 staff bed-units. Although the Ktunaxa compared this to Whistler in

oral argument, Glacier says this is one-tenth the size of Whistler’s official

52,500 bed base and even smaller than nearby Panorama’s approved 7,084

bed base: Table 4.2 on page 52 of the MP Executive Summary;

(e) removal of the Glacier Dome Lodge and deletion of an initial phase at

the base of Glacier Dome, which was moved to within the Proposed Resort

base area;

(f) removal of parking area and bus access facilities at the abandoned

mine site along the access road;

(g) removal of two ski lifts and ski runs at the south end of CRA to

eliminate any visual or physical impact on the current recreational use of the

Jumbo Pass area;

(h) removal of ski lifts on the west side of the valley where impact to

grizzly bear habitat was expected to be greatest;

(i) design of access road improvements to minimize environmental

impacts, cost and traffic speed;

(j) introduction of an Employment Equity Plan providing for preferential

hiring of local residents and First Nations members and outlining training and

education opportunities;

(k) creation of a First Nations Interpretive Centre and an Environmental

Monitoring Centre at the Proposed Resort;

(l) provision for on-site independent environmental monitors during all

phases of construction;

(m) provision for the Ktunaxa’s continued use of portions of the CRA for

the practice of traditional activities; and


(n) the designation and establishment of a WMA outside the CRA, with

ongoing Ktunaxa involvement in its implementation and the development of

WMA objectives.

[237] The Minister’s Rationale specifically refers to some of these matters. These

accommodations include amendments and revisions to the Proposed Resort made

during the various regulatory reviews I have already described.

[238] It is clear that many changes were made to the specifications for the

Proposed Resort in response to the Ktunaxa’s concerns. The assessment of

whether this accommodation is reasonable must, in my opinion, be viewed within the

broader context of the various regulatory approvals the Proposed Resort has been

through since 1991. I will not repeat that history here.

[239] In written submissions, the Minister summarises its response to the list of

aboriginal rights asserted by the Ktunaxa in July 2011. The summary references

sections of the Consultation/Accommodation Summary that the Minister submits

show reasonable accommodation of the asserted Aboriginal rights. Reformatted

slightly, this summary reads as follows: :

1. The right to continue to practice and benefit from our spiritual-religious relationship with Grizzly Spirit, individually and collectively, in our traditional ceremonies, songs and dances;

Response: The evidence was that these ceremonies took place on reserve. As a condition to the MDA, the developer will be required to provide for continuing use by the Ktunaxa of portions of the CRA for the practice of traditional activities. (Consultation/Accommodation Summary at 36)

The pursuit of the establishment [of] a WMA, with an invitation to the Ktunaxa to engage with the Province in the development and implementation of the WMA objectives. (Consultation/Accommodation Summary at 52)

2. The right to continue the tradition of vision quests and other spiritual-religious practices seeking and benefitting from Grizzly Spirit’s special guidance, whether for the sake of the individual or the community;

Response: There was no evidence of vision quests within the CRA. In any event, as a condition to the MDA, the developer will be required to provide for continuing use by the Ktunaxa of portions of the CRA for the practice of traditional activities.


(Consultation/Accommodation Summary at 36)

3. The right to continue to journey, individually and collectively, to Grizzly Spirit’s home to experience his presence and power, and take away and share the benefits of the experience;

Response: As a condition to the MDA, the developer will be required to provide for continuing use by the Ktunaxa of portions of the CRA for the practice of traditional activities. (Consultation/Accommodation Summary at 36)

The pursuit of the establishment of a WMA, with an invitation to the Ktunaxa to engage with the Province in the development and implementation of the WMA objectives. (Consultation/Accommodation Summary at 52)

4. The right to maintain our people’s kinship with grizzly bears and to continue or traditional practices expressing our kinship;

Response: As noted below, those traditional practices take place on reserve. As a condition to the MDA, the developer will be required to provide for continuing use by the Ktunaxa of portions of the CRA for the practice of traditional activities. (Consultation/Accommodation Summary at 36)

5. The right to continue to join, individually and collectively, with our brother and sister grizzlies at Qat’muk, whether in times of celebration or in times of difficulty;

Response: The approved Master Plan shows the removal from the CRA of the lower Jumbo Creek area that has been perceived as having greater visitation potential from grizzly bears. It has also been amended to remove ski lifts on the west side of the valley, where impact to grizzly bear habitat was expected to be greatest. (Consultation/Accommodation Summary at 44)

The pursuit of the establishment of a WMA, with an invitation to the Ktunaxa to engage with the Province in the development and implementation of the WMA objectives. (Consultation/Accommodation Summary at 52)

6. The right to transmit cultural knowledge and practice regarding Grizzly Spirit, grizzly bears and other related matters associated with Qat’muk and particularly to transmit such knowledge and practice in those places within Qat’muk best suited for these purposes;

Response: The evidence is that these activities took place at the Mineral King Mine Site, at the confluence of Toby and Jumbo Creek.

7. The right to hunt deer, elk and other animals;

Response: It is generally recognized that the preferred areas for hunting in the Jumbo valley are outside of the CRA, particularly on the


valley bottom and within reasonable proximity of the road. The Resort area is approximately 80% non-vegetated land. (Consultation/Accommodation Summary at 10)

An agreement to allow hunting within the CRA by First Nations was included by the proponent in the EAC and impacts on traditional Ktunaxa hunting opportunities with the CRA may be minimal if agreement is made for hunting with the CRA. The proponent has agreed to negotiate a conditional agreement to allows hunting by First Nations within the CRA where feasible considering safety and operational requirements and is included in the MDA. (Consultation/Accommodation Summary at 11)

The Ministry is prepared not to initiate, or to require the proponent to initiate, an application for a No Shooting Zone along the section of the access road (which was constructed approximately 50 years ago for mining and logging) and as a result only the basic firearm restrictions which exist for all public roads would apply (prohibiting shooting within 15 m of the centerlines on the road rather than up to 400 m). (Consultation/Accommodation Summary at 12)

There are requirements for on-site independent environmental monitors during all construction to address, among other things, water quality fish and wildlife. (Consultation/Accommodation Summary at 22)

8. The right to fish;

Response: As a condition to the MDA, the developer will be required to provide for continuing use by the Ktunaxa of portions of the CRA for the practice of traditional activities. (Consultation/Accommodation Summary at 36)

There are requirements for on-site independent environmental monitors during all construction to address, among other things, water quality, fish, and wildlife. (Consultation/Accommodation Summary at 22)

9. The right to harvest berries;

Response: As a condition to the MDA, the developer will be required to provide for continuing use by the Ktunaxa of portions of the CRA for the practice of traditional activities including berry picking and plant gathering. (Consultation/Accommodation Summary at 36)

10. The right to harvest medicinal plants and materials;



11. The right to access and temporary occupation.


[240] The Proposed Resort area was first identified as suitable for an all season ski

resort as early as 1991. The assertion that no accommodation was possible first

surfaced in mid-2009. The Ktunaxa argue that they advised the Minister of the

sacred values in the Jumbo Valley as early as 1991, but acknowledge that the “no

middle ground” position was only articulated from mid-2009 onwards.

[241] The evidence discloses that the Ktunaxa are secretive in their spiritual beliefs.

However, there is no evidence that the specific belief at issue here, namely that a

development in the nature of the Proposed Resort is fundamentally inimical to

Ktunaxa religion, is one which was not revealed earlier because of secrecy

concerns. In other words, the spiritual belief on which the “no middle ground”

position is based is of recent understanding rather than being a longstanding belief

that was kept secret. This belief is first explained in the affidavit of a single

knowledge holder. The ancillary affidavits do not suggest that this position stems

from concerns or teachings learned from any other knowledge holders. Even in the

extrinsic expert evidence that was not before the Minister, much of which I do not

admit, there is no suggestion that the “no middle ground” position reflects a specific

belief of ancient or earlier origins.

[242] In Tlowitsis Nation v. Macmillan Bloedel Ltd. (1990), 53 B.C.L.R. (2d) 69,

1990 CanLII 2335 (C.A.), the Court of Appeal upheld the Chambers judge reasons

for refusing injunctive relief. The Chambers judge expressed concern about the late

timing of the First Nation’s assertion that their primary concern was that the sacred

character of an area would be damaged if the proposed logging in that area went

ahead. Whereas the plans to log the area and the First Nation’s opposition to those

plans had been known for some time, the assertion about the sacred nature of the

area was only raised a few days before the injunction application was brought.


[243] In Siska Indian Band v. British Columbia (Minister of Forests), 1999 CanLII

2736 (B.C.S.C.), another injunction case, Sigurdson J. agreed that the weight to be

given certain evidence of asserted harm might be affected by the timeliness with

which it is adduced.

[244] It is not disputed that the Ktunaxa hold religious and spiritual ceremonies on

reserve and/or away from Qat’muk that involve or engage their beliefs in the Grizzly

Bear Spirit. Such ceremonies include the Blacktail Dance and other dances, sweats,

and other traditional ceremonies like the grizzly bear and blanket ceremonies. A

cultural camp at Qat’muk has also been held in 2011 and 2012 at the former Mineral

King mine site at the junction of Toby Creek and Jumbo Creek. There is also no

doubt that with the accommodations offered by the Minister the Ktunaxa will

continue to have access to sections of the CRA and most of Qat’muk for any such

ceremonies, as well as for other spiritual and traditional purposes.

[245] I cannot agree with the Ktunaxa that the record discloses a “cavalier attitude”

or “complete disregard” to the Ktunaxa’s spiritual and/or religious concerns. Although

the Ktunaxa adduce various criticisms of the process, in my opinion, viewed globally,

the record before me reveals a record of meetings, exchanges, and accommodation

offers that amounts to a reasonable process of consultation and accommodation

between the Minister and the Ktunaxa, even if not necessarily regarded as such by

the Proponent, Glacier Resorts, whose involvement from proposal to final approval

has spanned 21 years. In my opinion the accommodations offered fall within a range

of reasonable responses which upholds the honour of the Crown and satisfied the

Crown’s duty to consult and accommodate the Ktunaxa’s asserted Aboriginal rights.

VII. Section 2(a) of the Charter

[246] The Ktunaxa frame this issue as follows:

Was the Minister’s Decision to approve the MDA for a ski resort in the heart of Qat’muk a violation of the Ktunaxas’ Right to Freedom of Religion under Section 2(a) of the Canadian Charter of Rights and Freedoms?


Law

1. Relevant Charter Sections

[247] Several parts of the Charter are relevant to this issue, including the preamble

and ss. 1, 2, 24, and 27:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

….

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

…

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

2. Principles of Charter Interpretation

[248] The Charter must be interpreted in light of its purpose. As Dickson J., writing

for the Court, states in Hunter v. Southam Inc., [1984] 2 S.C.R. 145 [Southam] at

156:

The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.


[249] Section 27 makes the multicultural heritage of Canada an interpretative

guideline for the Charter: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 302 [Big

M Drug Mart].

[250] As the former Chief Justice of British Columbia explains in Carter v. Canada

(Attorney General), 2013 BCCA 435 at para. 84:

[84] … the Charter must be interpreted by applying the plain meaning of its words, by giving effect to its purpose to protect fully those rights that it guarantees, and by limiting efforts to minimize those rights: …

[251] In Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at 259, the

Supreme Court of Canada identified three overlapping reasons for entrenching a

constitution beyond the reach of a simple majority rule:

First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection. Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority.

[Emphasis added].

3. The Preamble

[252] Section 13 of the Interpretation Act, R.S.C. 1985, c. I-21, states:

13. The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.

[253] The preamble to the Charter must be considered when analyzing the nature

of the guarantee contained in s. 2(a). In R v. Big M Drug Mart, [1983] 4 W.W.R. 54,

[1983] AJ No 1055, Stevenson J. states at para. 84:

If one now turns to the preamble of the Charter we see that, "Canada is founded upon principles that recognize the supremacy of God". Bearing in mind that the preamble may not carry the force of law, it still shows that the Charter does not recognize any particular denomination, and (noticeable by


its absence) it does not refer to a Christian God. The preamble surely is intended to reflect the multicultural and multi-denominational make-up of Canada.

That decision of the Alberta Provincial Court to strike down s. 4 of Alberta’s Lord’s

Day Act as an unjustifiable infringement of s. 2(a) of the Charter was affirmed by

both the Alberta Court of Appeal and the Supreme Court of Canada.

4. Section 2(a) Jurisprudence

[254] The rights and freedoms protected by the Charter are rights and freedoms

against the state: Reference re Remuneration of Judges of the Provincial Court

(P.E.I.), [1997] 3 S.C.R. 3 at para. 124. They establish a minimum constitutional

protection that must be taken into account by the legislature and by every person or

body subject to the Charter: Multani v. Commission scolaire Marguerite-Bourgeoys,

2006 SCC 6, [2006] 1 S.C.R. 256 at para. 16, per Charron J.

[255] Reasonable limits on the Charter’s guarantee of the rights and freedoms it

sets out fall short of their elimination. In Adler v Ontario, [1996] 3 S.C.R. 609,

McLachlin J., dissenting in part, states at para. 223:

Section 1 of the Charter permits reasonable limitations of rights, not their annihilation. It is not difficult to conceive of laws whose effect would be virtually to eviscerate a particular freedom or right, creating an effect so disproportionate to the goal by which they are sought to be justified that they could not be justified.

[256] The Charter’s guarantee of fundamental freedoms requires the state to

respect - including, if need be, to yield - the space needed for their enjoyment: “A

truly free society is one which can accommodate a wide variety of beliefs, diversity

of tastes and pursuits, customs and codes of conduct” (Big M Drug Mart at 336).

Freedom of religion is a core, constitutionally protected democratic value: Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 [Hutterian

Brethren] at para. 110 per Abella J. dissenting.

[257] In two foundational cases, Dickson C.J.C. laid out the basic principles that

underlie the guarantee of freedom of conscience and religion in s. 2(a) of the


Charter: (1) the purpose of freedom of religion is related to every individual’s right to

“be free to hold and to manifest whatever beliefs and opinions his or her conscience

dictates, provided inter alia only that such manifestations do not injure his or her

neighbours or their parallel rights to hold and manifest beliefs and opinions of their

own” (Big M Drug Mart at 346), and (2) “[t]he purpose of s. 2(a) is to ensure that

society does not interfere with profoundly personal beliefs that govern one’s

perception of oneself, humankind, nature, and, in some cases, a higher or different

order of being”: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at 759.

[258] Freedom of religion includes the right to hold religious beliefs of one’s choice,

the right to declare these openly and without reprisal, and the right to manifest

religious beliefs in worship, practice and dissemination. Freedom of religion also

implies a freedom from coercion to a different religion or coercion to act contrary to

one’s religious beliefs: Congrégation des témoins de Jéhovah de St-Jérôme-

Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650 at para. 65;

Big M Drug Mart at 336-337.

[259] The s. 2(a) guarantee upholds freedom of choice and individual autonomy:

Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 [Amselem] at

para. 40, per McLachlin C.J.

[260] It does not, however, confer a right to worship or to establish a school of

religious education at a location of one’s own choice: Congregation of the Followers

of the Rabbis of Belz to Strengthen Tora v. Val-Morin (Municipalité de), 2008 QCCA

577 at para. 45, leave to appeal ref’d, [2008] S.C.C.A. No. 256; see also Montréal

(Ville de)v. Église de Dieu Mont de Sion, 2011 QCCS 4281.

[261] An infringement of s. 2(a) is made out where: (1) the claimant sincerely

believes in a belief or practice that has a nexus with religion; and (2) the impugned

measure interferes with the claimant’s ability to act in accordance with his or her

religious beliefs in a manner that is more than trivial or insubstantial: Hutterian

Brethren at para. 32, per McLachlin C.J.


[262] Religion ordinarily involves a particular and comprehensive system of faith

and worship, usually involving belief in a divine, superhuman, or controlling power. In

essence, it is about freely and deeply held personal spiritual convictions or beliefs

linked to faith, self-definition and fulfillment: Amselem at para. 39. Since religion is a

matter of faith intermingled with culture, it is individual yet profoundly communitarian:

Hutterian Brethren at para. 89, per McLachlin, C.J.

[263] Although the sincerity of a person’s belief that a religious practice must be

observed is relevant to whether the person’s right to freedom of religion is at issue,

an infringement of this right cannot be established without objective proof of an

interference with the observance of that practice: S.L. v. Commission scolaire des

Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235 at para. 2, per Deschamps J.

5. Charter Review of Discretionary Administrative Decisions

[264] The approach to reviewing the constitutionality of a law is different than the

approach to reviewing an administrative decision that is argued to have violated the

Charter right of an individual: Hutterian Brethren at paras. 66-67. It is stating the

obvious to say that administrative decision-makers must act in accordance with

Charter values. However, until Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1

S.C.R. 395 [Doré] there was some uncertainty as to the correct approach to take on

judicial review for determining whether an administrative decision complied with the

Charter.

[265] In Doré, the Supreme Court of Canada considered the issue of how to protect

Charter guarantees in the context of adjudicated administrative decisions. The Court

held that the notion of deference in administrative law is not a barrier to or

inconsistent with effective Charter protections. Rather, the Court found “conceptual

harmony” between reasonableness review in administrative law and the Oakes

framework under s. 1 of the Charter as both contemplate a “margin of appreciation”

or deference in balancing Charter values against broader objectives.

[266] An administrative decision-maker must balance Charter values with the

applicable statutory objectives when exercising a grant of statutory discretion. In


effecting this balancing, the decision-maker should first consider the statutory

objectives, and then ask how the Charter value at issue will best be protected in

view of those objectives. This is an exercise in proportionality and will require the

decision-maker to balance the severity of the interference with the Charter protection

with the statutory objectives.

[267] In Doré, the Court confirmed that the standard of review for assessing the

compliance of a discretionary administrative decision with the Charter is

reasonableness. This deference reflects the advantage that an administrative

decision-maker has in applying the Charter to a specific set of facts and in the

context of the enabling legislation. In other words, deference is justified on the basis

of the decision-maker’s expertise and proximity to the factual context.

[268] On judicial review of a discretionary administrative decision for compliance

with the Charter, the reviewing court must ask whether the decision-maker

disproportionately, and therefore unreasonably, limited a Charter right: is there an

appropriate balance between rights and objectives, and are the rights at issue not

unreasonably limited (Doré at para. 6). The nature of the reasonableness analysis is

contingent on context and centres on proportionality, namely, ensuring that the

decision interferes with the relevant Charter guarantee no more than is necessary

given the statutory objectives: Catalyst Paper Corp. v. North Cowichan (District),

2012 SCC 2, [2012] 1 S.C.R. 5 at para. 18; Doré at para. 7.

Analysis

1. Must the decision-maker specifically reference the Charter right?

[269] The Ktunaxa submit that based on the Minister’s Rationale, it is clear the

Minister “never even put his mind to the Charter right at issue” despite the Ktunaxa

having raised it several times. The Ktunaxa further argue that the Minister’s focus on

“spiritual interests” rather than the associated “practices and beliefs” is evidence that

the Minister never considered the asserted s. 2(a) right.


[270] As I discussed earlier, the substance of claimed s. 2(a) right was clearly

before the Minister since at least 2009, when the Ktunaxa took the position that the

Proposed Resort was fundamentally irreconcilable with their spiritual connection to

the area. The spiritual aspect in a more general sense had been asserted since at

least 2003. The Ktunaxa’s subsequent explicit assertion of their s. 2(a) Charter right

added a new description to a live issue in the decision-making process that was, in

substance, already entirely before the Minister.

[271] In my opinion it does not matter whether the Minister’s Rationale contains the

specific language of the Charter. What matters is that the Minister’s actions and the

accommodations offered address the substance of the asserted Charter right where

necessary.

[272] This is neither the rejection nor the acceptance of the Ktunaxa’s assertion that

the balancing of Charter values with statutory objectives is fundamentally different

than the balancing of asserted but unproven Aboriginal rights with competing

societal interests. In my view the issue is whether the substance of the asserted

Charter issue was appropriately addressed by the impugned decision-maker in the

particular circumstances of the case. As such, the questions to be answered in my

analysis are: (1) is the Ktunaxa’s asserted right protected by s. 2(a) of the Charter

and infringed by the MDA, and, if so, (2) did the actions of the Minister and the

accommodations offered reasonably balance the Charter value at issue with the

applicable statutory objectives?

[273] In my view, both the Minister’s Rationale and the preceding consultation

process address the substance of the Ktunaxa’s asserted s. 2(a) Charter right. In the

circumstances of this case, I do not think it would add anything to my consideration

here if the Minister had sought to specifically analyze the asserted Charter right with

the spiritual practices and the various accommodation measures proposed.

[274] The question in each case must be, did the impugned decision engage the

asserted Charter right and, if so, does the decision reflect a proportionate balancing


of the relevant Charter value with the applicable statutory objectives within the

relevant factual context?

2. Does the MDA infringe s. 2(a) of the Charter?

[275] There is no issue here that the Ktunaxa’s system of spiritual beliefs

constitutes a religion, the precise tenets of which may not be widely known or held,

and in some cases which may be restricted to specific knowledge-keepers. That

said, I agree with the Ktunaxa that, to take a majoritarian example, a person is no

less a Christian if they cannot recite the revelations of St. John. Nor, in my view, is

recent revelation necessarily inconsistent with a genuinely held religious belief. I

accept that the first part of the test set out in Hutterian Brethren is established,

namely that the Ktunaxa’s spiritual beliefs and practices are sincere and have a

nexus with religion.

[276] The second part of the test concerns whether the impugned decision

interferes with the Ktunaxa’s ability to act in accordance with their religious beliefs in

a manner that is more than trivial or insubstantial.

[277] The Supreme Court of Canada jurisprudence to date regarding s. 2(a) largely

deals with situations where a law either compels an individual to act in a manner

contrary to his or her religious beliefs or creates burdens on an individual’s ability to

act in accordance with those beliefs. For example, a law violates religious freedom

where it (i) prevents businesses from opening on Sundays (Big M Drug Mart), (ii)

prohibits the erection of a temporary religious structure on controlled property

(Amselem), (iii) requires a public use photograph (Hutterian Brethren), or (iv)

prohibits a student from wearing a religious symbol (Multani). In all of these

examples, the impugned state action violates freedom of religion by coercing or

constraining conduct.

[278] The question in this case is whether s. 2(a) extends to protect against state

action that reduces, or causes loss of, the meaning of or fulfillment gained from a

religious practice, without coercing or constraining individual action.


[279] The parties’ positions on this issue can be summarised as: (1) the Ktunaxa

say any development in Qat’muk that involves overnight human accommodation in

permanent structures infringes their Charter protected right to freedom of religion in

a manner that is not trivial or insubstantial; (2) the Minister and Glacier say, based

on existing authority, that s. 2(a) does not extend to protect the meaning of, or

fulfillment gained from, religious practices where it is affected by a particular nearby

land use.

[280] Before analysing the substance of this issue, let me first reiterate the context.

The Proposed Resort area is a large tract of “wilderness” near the already protected

Purcell Wilderness Conservancy. It includes glaciers that are currently used by a

heli-ski operation, a 104 hectare former sawmill site, previously logged slopes, land

serviced by a forestry access road, and a former mine site. It is used by hikers and

hunters, including grizzly bear hunters. Both the Ktunaxa and the SIB use the area

for, among other things, hunting, fishing, and gathering. There is provision within the

MDA for ongoing use of the CRA by both groups. The Ktunaxa also recently used

the former mine site as a camp. Other adjacent undeveloped Crown lands are

proposed to be part of a protected 55,000 hectare WMA. There is an existing ski

resort in the vicinity. All this has occurred or is still occurring within the imprecisely

defined area the Ktunaxa call Qat’muk.

[281] The Minister and Glacier cite two decisions for the proposition that s. 2(a)

does not extend to protecting the meaning behind spiritual practices where affected

by the use of land in a nearby area but where no practices or ceremonies physically

take place.

[282] In Residents for Sustainable Development in Guelph v. 6 & 7 Developments

Ltd. (2005), 133 C.R.R. (2d) 205, 2005 CanLII 63751 (ONSC) [RSG], the issue was

the compatibility of a proposed land use (a Wal-Mart) with three existing and

neighbouring land uses, two cemeteries and a religious spiritual retreat. The

claimant argued that the land uses were socially incompatible and that the


“consumerism of the development conflicted with the spirituality of the retreat

process” (paras. 4-5).

[283] The Ontario Superior Court of Justice Divisional Court upheld an Ontario

Municipal Board finding that freedom of religion does not extend to protect religious

practices that could be affected by the mere presence of a nearby land use or a

particular user. To find otherwise would, in effect, create a “zone of exclusivity” that

would limit the lawful use of neighbouring land. In the alternative, the Ontario

Municipal Board held that if there was an infringement of s. 2(a), it was trivial and

insubstantial.

[284] There is a difference between that decision and the Ktunaxa’s claim in this

case. The spiritual beliefs related to the retreat in RSG had no specific geographic

reference to or dependence on the proposed development land. In this case, the

Ktunaxa’s spiritual beliefs are “anchored”, for want of a better word, to Qat’muk.

[285] In Kelly Lake Cree Nation v. British Columbia (Minister of Energy and Mines)

(1998), [1999] 3 C.N.L.R. 126 (B.C.S.C.), two First Nations argued that a drilling

permit which authorised an exploratory well would impact, inter alia, their s. 2(a) right

to freedom of religion. The proposed drill site lay between two mountains, the Twin

Sisters, which are spiritually revered by Aboriginal peoples.

[286] Taylor J. states at 164:

…the area of the Twin Sisters is a territorial aspect of the exercise of religious rights and customs even though there is a dearth of evidence of actual physical exercise of the religious customs. The religious rights and customs lie in the prophesy and the intellectual stewardship with which First Nations people view the area of the Twin Sisters.

I accept that there is a territorial aspect to the KLCN members' religious practices that involves the Twin Sisters mountains even though there is no actual use in current or recent history of this area for such purposes.

[287] And concludes at 165:

I conclude that s.2(a) does not protect a concept of stewardship of a place of worship under the protection of religious freedom. …


Additionally, I conclude that the provisions taken, in terms of the protected area and the conditions attached to the permits which minimize impact, amount to a minimal interference with the exercise of religious freedom in terms of the sanctity with which the general area is viewed.

While not satisfied with the intrusion into the area generally, the [First Nation] do not point to any actual deprivation or incursion of the right to religious freedom as a consequence but rather it is the defilement of a concept that is paramount. Thus, I conclude that there is no contemplated activity that inhibits or coerces the right to exercise religious beliefs or practices either on an actual usage basis or in an intellectual sense in this area as viewed by those who regard themselves as stewards of it.

[288] The second branch of the Hutterian Brethren test for establishing a s. 2(a)

infringement requires that the impugned state action “interferes with the claimant’s

ability to act” in accordance with his or her belief or practice. In this case, the

Ktunaxa’s actions associated with religious observance include ceremonial dances,

vision quests, and prayer.

[289] The Ktunaxa do not argue that the Proposed Resort, with overnight human

accommodation in permanent structures, will interfere with the conduct of their

ceremonial dances, which occur elsewhere, or prevent them embarking on vision

quests, or engaging in prayer or worship. Rather, their argument focuses on an

asserted loss of meaning to actions that are otherwise unconstrained.

[290] Kelly Lake offers the closest Canadian authority to the Charter issue in this

petition. The parties also referred to two US court decisions they considered relevant

to the Charter issue in this case.

[291] In Navajo Nation v. UnitedStates Forest Service, 535 F (3d) 1058 (9th Cir

2008), aff’d 556 US 1281 (2009), the First Nation plaintiffs sought to enjoin the

federal government from permitting the use of artificial snow made from recycled

wastewater that contains remnants of human waste on part of a mountain sacred to

their religion. To the plaintiffs, it would “spiritually desecrate the mountain” and

“decrease spiritual fulfillment” from their religious practices. The issue before the

Court was whether government action that affects only subjective spiritual fulfillment,

significant as that might be, is a substantial burden on the free exercise of religion.


The Court held that it was not: government action that diminishes subjective spiritual

fulfillment does not substantially burden religion.

[292] A similar result occurred in Lyng v. Northwest Indian Cemetery Protective

Assn, 485 US 439, 108 S Ct 1319, 99 L Ed 2d 534 (1988).

[293] Although I note the results in these decisions, the differing legislation,

constitution, and applicable legal tests make the reasoning of limited usefulness

here. That being said, both are examples from another jurisdiction where freedom of

religion does not extend to prevent otherwise lawful land use that might deprive a

particular religious belief of subjective fulfillment. In that way, those decisions are

similar in result to both Kelly Lake and RSG.

[294] In oral submissions, the Ktunaxa also referred to two related decisions of the

US Federal Energy Regulatory Commission (“FERC”) regarding an application for a

licence to construct, operate, and maintain a proposed Kootenai River Hydroelectric

Project. The proposed project included the planned construction of a concrete dam

above Kootenai Falls, a sacred site of the Kootenai people. The initial decision by

the administrative law judge denied the application as not being in the public

interest: Re Northern Lights, Inc., Project No. 2752-000, 27 FERC 65,024, issued

April 23, 1984. The subsequent FERC decision affirmed the initial decision: Re

Northern Lights, Inc., Project No. 2752-000, Opinion No. 276, issued June 25, 1987.

[295] Neither decision is of assistance to this petition. First, neither addressed the

constitutional guarantee of free exercise of religion, as was considered in the two US

court cases discussed above. Second, the adverse effect on Kootenai culture and

religion was just one of many considerations that went into denying the application

as not in the public interest. In fact, the initial decision would have denied the

application even if there was no adverse effect on the Kootenai people. Third, the

Ktunaxa referred to statements in an appendix to the initial decision that summarised

evidence given by Dr. Deward Walker. These statements are not findings of the

decision-maker.


[296] In my opinion, constitutional protection of freedom of religion does not extend

to restricting the otherwise lawful use of land, on the basis that such action would

result in a loss of meaning to religious practices carried out elsewhere. That is, the

otherwise lawful use of land by others is not a form of coercion or a constraint on

freedom of religion which s. 2(a) of the Charter protects.

[297] Specifically, the Ktunaxa say that if the Proposed Resort is built as planned,

with overnight human accommodation in permanent structures within the heart of

Qat’muk, the Grizzly Bear Spirit will leave that area. Consequently, the Ktunaxa will

no longer have access to the Grizzly Bear Spirit or the gifts it provides to them, and

their religious rituals involving the Grizzly Bear Spirit will become meaningless. The

Ktunaxa do not assert any specific site or defined area within Qat’muk that is used

for religious purposes, such as a meeting place, place of worship or ceremonial

locale. The actions involved in these religious practices are thus unconstrained by

the Proposed Resort.

[298] There is no coercion or constraint on what the Ktunaxa can do or must omit

from doing, as, for example, in the Sunday observance cases, Hutterian Brethren,

and the religious education cases. There is no coercion or constraint on what one

can or cannot wear, as, for example, in the religious symbol cases. There is no

coercion or constraint on the right to entertain such beliefs as a person chooses

(such as requiring non-believers to submit to majoritarian practice, dogma, or ritual),

to declare such beliefs openly, or to manifest such beliefs by worship, practice,

teaching and dissemination: Big M Drug Mart at 336.

[299] To put the matter in the language of the test for the infringement of s. 2(a), as

articulated in Hutterian Brethren, where the otherwise lawful use of land is asserted

to cause the loss of meaning to or fulfillment from religious practices carried out

elsewhere, the interference cannot exceed the threshold of being beyond “trivial or

insubstantial”. The infringement of s. 2(a) must be established based on facts that

can be established and determined objectively: S.L. at para. 23. I do not think a


subjective loss of meaning without some associated coercion or constraint on

conduct can meet that required threshold.

3. Does the MDA reflect a reasonable balancing?

[300] To summarise, in my view s. 2(a) of the Charter does not extend to protect

the Ktunaxa’s asserted right. As such, I need not consider whether the Minister’s

actions and the accommodations offered represent a reasonable balancing of the

Charter value and applicable statutory objectives as required by Doré.

[301] However, if I am wrong about the scope of s. 2(a), I would find that the

actions of the Minister’s and accommodations offered represents a reasonable

balancing of the Charter value and statutory objectives. That is, the Minister’s

approval of the development of the Proposed Resort in the circumstances here does

not interfere with the Ktunaxa’s freedom of religion in a way that is unreasonable or

disproportionate.

[302] The Minister’s Rationale for approving the MDA begins by outlining the

“Nature of the Decision” (page 1) and the “Scope of the Decision” (page 2). In these

sections, the Minister outlines the statutory and policy objectives that are relevant to

the impugned decision. This includes a responsibility to “encourage outdoor

recreation” (Ministry of Lands, Parks and Housing Act, R.S.B.C. 1996, c. 307, s.

5(a)) and the authority to dispose of Crown land “as the minister considers advisable

in the public interest” (Land Act, R.S.B.C. 1996, c. 245, s. 11(1)).

[303] The ASR Policy guides the Minister’s specific consideration of whether to

dispose of Crown land for the purposes of a ski resort. This provides that the

Minister must “in good faith attempt to conclude an MDA” where an Interim

Agreement has been signed with a proponent. I note that this does not require the

Minister to conclude an MDA, but simply to attempt to do so in good faith. This is in

line with the statutory objectives that guide the Minister’s exercise of discretion.

[304] In any good faith attempt to conclude an MDA, however, the actions of the

Minister must consider any applicable constitutional responsibilities. Two such


responsibilities include fulfilling the required duty to consult and accommodate and

balancing the statutory objectives with any Charter values engaged by the decision.

[305] In some circumstances, balancing the relevant Charter value might require

the Minister to find that the MDA cannot be approved. That is what the Ktunaxa

assert the Minister must find here. In other circumstances, however, the adoption of

certain accommodation measures might provide the appropriate balance between

the Charter value and statutory objectives. That is what the Minister decided in this

case and I find it to be a reasonable conclusion.

[306] Though the Minister’s Rationale does not specifically reference s. 2(a) of the

Charter, it does recognise the substance of the Ktunaxa’s asserted Charter right.

The Minister’s Rationale says “[t]he Ministry sincerely recognises the genuinely

sacred values at stake for Ktunaxa leadership and the Knowledge Keepers in

particular”.

[307] I do not consider it significant that this statement was in the context of the

Ktunaxa’s asserted aboriginal spiritual right. In this particular factual context, the

substance of the asserted aboriginal spiritual right and the asserted s. 2(a) right is

the same, and the Minister’s Rationale acknowledges it.

[308] By the same reasoning, any accommodation measure that addresses the

substance of the asserted right in this case can be considered both in determining

whether the duty to consult was met and in assessing whether the balancing of

Charter values was proportionate. In saying this, I do not find the balancing of s. 2(a)

to necessarily have the same procedural or substantive requirements as the duty to

consult and accommodate in relation to an asserted aboriginal spiritual right.

[309] Put differently, an accommodation measure addresses the substance of an

asserted right not the legal foundation for that right. Any given measure can go

toward accommodating different legal rights, though the totality of the required

accommodation may differ between legal rights.


[310] The Minister’s Rationale details several accommodation measures that were

taken. Though stated as in relation to the Ktunaxa’s asserted aboriginal spiritual right

under s. 35, the same measures are germane to assessing whether the Minister’s

decision represents a proportionate balancing of s. 2(a) with the applicable statutory

objectives.

[311] The Minister’s Rationale highlights the following accommodations: (1) a 60%

reduction in the CRA; (2) a significant reduction in the resort base area to keep it

entirely within the logged area around the former sawmill site; (3) the removal of the

CRA from the Lower Jumbo Creek area which is perceived as having greater Grizzly

bear visitation potential; (4) the removal of ski lifts from the West side of the valley

where the greatest impact to Grizzly bear habitat was expected; and (5) the

establishment of a WMA in which the Ktunaxa are invited to engage in development

and implementation.

[312] Further accommodation measures not mentioned in the Minister’s Rationale

include: (6) the establishment of a Grizzly bear Management Committee that the

Ktunaxa are invited to participate in; (7) the removal of bus facilities and parking at

the abandoned mine site, which is where the Ktunaxa have held a camp in recent

summers; and (8) the establishment of a “section 16 Land Act reserve” 250 metres

either side of the access road from Panorama to the Proposed Resort, which will

prohibit residential development and limit commercial development and other Land

Act dispositions.

[313] Considered together, these accommodations are clearly intended to reduce

the footprint of the Proposed Resort within Qat’muk and lessen the effect of the

Proposed Resort on Grizzly bears, within which the Ktunaxa say the Grizzly Bear

Spirit manifests itself.

[314] The Ktunaxa assert that this accommodation is insufficient. Indeed, they

assert that no accommodation of their s. 2(a) right is possible without quashing the

approval of the MDA and stopping the Proposed Resort from being built. The

Ktunaxa say there is no middle ground because the offensive aspect of the


Proposed Resort is the construction of buildings and permanent human habitation in

Qat’muk. Their position is the same for their s. 35 right to consultation and

accommodation.

[315] This “no middle ground” position and the reason for it was first brought to the

Minister’s attention in 2009, over 15 years after Glacier was granted sole proponent

status in relation to the Proposed Resort. While the Ktunaxa have stated their

general opposition to the Proposed Resort as early as 1991 (in 1994 a major

concern was the resort proceeding before treaty negotiations were complete) and at

various points since, they also participated in the land planning and development

process over many years without articulating the “no accommodation possible”

position.

[316] In my opinion, the aspect of the Proposed Resort that most offends the

Ktunaxa, i.e. building construction and permanent human habitation, is fundamental

to the basic concept of the Proposed Resort. If this was truly the Ktunaxa’s extant

belief at the time, it is hard to understand how they could have participated in any of

the land development processes without bringing this basis for their opposition to the

Minister’s attention. Though the Ktunaxa argue that their opposition to the Proposed

Resort has been consistent since the beginning, the 2009 assertion that no

accommodation is possible and the reason for that position is in significant contrast

to their earlier willingness to explore possible accommodation. As I have said, it

appears to be based on events that transpired in 2004 but were only communicated

to the Minister in 2009.

[317] The impugned decision falls within a factual matrix that spans over 20 years.

This change in position can inform my assessment of whether the Minister’s

proposed accommodations represent a reasonable balancing of Charter values with

statutory objectives.

[318] The Minister’s Rationale also states that the socio-economic viability of the

Proposed Resort was considered and that the Proposed Resort can be economically

viable. In reaching the conclusion, the Minister considered analyses from the EAC


and MP processes as well as Dr. Shaffer’s report on the economic benefits of the

Proposed Resort, which was commissioned by the Ktunaxa. On the last page, the

Minister’s Rationale describes the estimated total capital investment and potential

number of permanent, direct jobs that might result from the Proposed Resort at full

build out.

[319] I pause to make specific comment on Dr. Shaffer’s report that was before the

Minister, as the Ktunaxa rely on it for the proposition that there is no evidence that

the Proposed Resort will bring economic benefits. Dr. Schaffer’s report is critical of

the economic analyses undertaken as part of the EAC and MP processes as not

capable of supporting a conclusion that the Proposed Resort will produce net

economic benefits, as understood according to principles of benefit-cost analysis.

Dr. Schaffer specifically opines that employment impacts and government revenue

impacts do not measure economic benefits. He also highlights uncertainty in certain

market forecasts used to predict economic estimates associated with the Proposed

Resort. Although he concedes there will be some tax revenues from the Proposed

Resort, Dr. Schaffer says that the net financial impact on government is unclear

because there is no estimate of government expenditures associated with the

project. He also says land and resource use benefits and costs are likely to be small.

[320] The Minister’s Rationale concludes that the “business plan and analysis are

reasonable and that the project can be economically viable”. The Minister seems to

be referring to a broader set of socio-economic considerations here than the

narrower question of whether the Proposed Resort will have net economic benefits. I

note that the heading for this “factor” considered as relevant by the Minister is

“socio-economic viability” not “economic benefits”. That the considerations are

broader is clear when the Minister describes the reasonableness of Glaciers

assumptions regarding economic viability and describes them as “including but not

exclusive to market analysis, development feasibility, economic benefits and First

Nation business opportunities”.


[321] The Minister’s listing of the total capital investment and number of direct jobs

created as “other factors” further suggests that these impacts have meaning beyond

simply whether they are tied to a net economic benefit. Overall, the Minister has

undertaken a consideration of various socio-economic factors, of which the

estimated economic benefits is one, and found the Proposed Resort to be viable

from this broader perspective.

[322] The Minister’s Rationale also states that the Minister has considered the

environmental concerns raised in the EAC and MP processes and concludes that

they are reasonable and minimise the potential environmental impact, particularly to

Grizzly bear habitat. The Minister notes the EAC commitments related to minimising

impacts to the Grizzly bear population, the commitment to implement a WMA

adjacent to the Proposed Resort, and the commitments to develop and monitor

Environmental Management Plans.

[323] The Minister must consider all relevant social, economic, and environmental

factors when balancing Charter values with statutory objectives. As stated earlier,

the court’s role on judicial review is not to adjudicate among competing views in

respect of these concerns individually. That is the Minister’s domain. The standard of

review is not correctness. Rather, the question is whether the Minister’s overall

balancing of Charter values and statutory objectives, into which these various other

factors feed, was reasonable. In my opinion, the Minister’s Rationale and the

preceding factual context evinces a reasonable balancing.

VIII. Summary

[324] The Ktunaxa assert that by approving the Proposed Resort within Qat’muk,

the Minister breached a duty to consult and accommodate their aboriginal spiritual

rights and violated their right to freedom of religion under s. 2(a) of the Charter.

Though seeking two avenues of constitutional protection, the substance of what the

Ktunaxa seek to protect under each provision is the same.

[325] The Minister approached the matter of the approval of the MDA as requiring

deep consultation. I have not been asked to and do not pass on the strength of the


asserted aboriginal rights. The process of consultation and the accommodation

offered in my opinion passes the reasonableness standard.

[326] The approval of the MDA does not infringe section 2(a) of the Charter. In any

event, the decision to approve the MDA with the various conditions and

accommodations represents a reasonable balancing of Charter values and statutory

objectives.

IX. Order

[327] The petition is dismissed for the reasons above. Any issue relating to costs

may be spoken to.

“The Honourable Mr. Justice Savage”


SCHEDULE “A”

SHUSWAP INDIAN BAND

PO Box- 2847 Invermere, BC, VOA-IKO Ph: 250.341.3678 Fax: 250.341.3683

Email [email protected]

June 30, 2004

KKTC

7468 Mission Rd

Oanbrook, BC

V1C7E5

Attention: Kathryn Teneese

Dear Kathryn

Re: Kinbasket Participation in Jumbo Glacier Resort Project

This letter is to confirm the position of the Kinbasket Peoples status with the above project.

The Shuswap Indian Band directed its business entity, Kinbasket Development Corporation to participate in the

Environmental Review process in cooperation with the Province of British Columbia. KDC has worked

through the EA process and has had representation on the Provincial Technical Review Committee. It is our

understanding tliat the Ktunaxa people had a similar opportunity.

In the course of that review, Shuswap initiated an independent Traditional Use Study and a Socio/Economic

Study in the interest of the Kinbasket People and the impacts associated with the Kinbasket traditional lands.

In conjunction with the above, Shuswap Indian Band Council has approved the signing of a letter of intent for

KDC to participate in any business opportunity that may present itself to the Shuswap Indian Band should the

resort advance.

So in brief, the Kinbasket People have chosen to actively participate in the Environmental Review process in

cooperation with the Provincial EA office in order to best understand the impacts of the project. We have

determined that the project provides sound environmental controls and results in significant economic benefits

to the region and the Kinbasket People. Since (a) we are the 1st Nation community located in closest proximity

to the proposed development project; (b) we have strong evidence connecting our aboriginal interests to the

proposed development area, and (c) we are a distinct First Nations people separate from the Ktunaxa Nation,

then we are the aboriginal peoples to whom is owed duties of consultation and accommodation by the project

proponents.

Consequently, we have chosen to shoulder our responsibilities and have taken a lead business role in the

proposed project.

As Council of the Shuswap Indian Band we are somewhat mystified that you choose to enter into the EA

review process, after the process has been effectively concluded. We are quite aware that KKTC was given

every opportunity to participate in the same process that the Shuswap Indian Band chose to participate in. We

are further concerned that your belated intervention may result in significant costs to KDC and ultimately the

Shuswap Indian Band.

mailto:[email protected]


Please be notified that the Shuswap Indian Band is not prepared to support the KKTC position as noted in

your letter to Martyn Glassman dated June 29th

, 2004. Should you choose to interfere with the economic

interests of the Shuswap Indian Band and seek any further cooperation from the Shuswap Indian Band, you

must first negotiate a Protocol Agreement clarifying the relationship between our Peoples, i.e. Ktunaxa and

Kinbasket, as it relates to your alleged interests in our traditional territory.

Yours truly,

Shuswap Indian Band

By Its

Authorized Signatories

“Clarissa Stevens”

“Marge' Bugene”

“Paul Sam”

cc: Mr. Martyn Glassman

Environmental Asesstnent Office


SCHEDULE “B”

March 1991 Pheidias Project Management Corporation submits proposal under Commercial Alpine Ski Policy (“CASP”).

September 1991 The Ktunaxa (“KNC”) provide a position paper concerning the Jumbo Glacier Ski Resort.

March 1993 British Columbia accepts proposal and grants sole Proponent status to Glacier Resorts (“Proponent”).

September 21, 1993 The KNC inform British Columbia that they are opposed to the proposed development of Jumbo Creek Drainage.

1992 – 1994 Commission on Resources and Environment (“CORE”) land use review process. One purpose of process is to address Aboriginal concerns.

November 1994 East Kootenay CORE process assigns “high recreation and tourism values” to area. Project subject to Environmental Assessment Review.

March 1995 Kootenay Boundary Land Use Plan approval of project subject to Environmental Assessment.

July 12, 1995 Interim Agreement between Proponent and Province.

September 20, 1995 The KNC pass resolution opposing the Jumbo Glacier Ski Resort.

March 26, 1997 The KNC confirm opposition of elders to oppose the proposed Jumbo Glacier Ski Resort

1995 – 2004 Environmental Assessment Act Review, with First Nations participation.

January 2003 The KNC pass a second resolution opposing the proposed ski resort.

October 8, 2003 Akisq’nuk, also known as the Columbia Lake Indian Band, pass a resolution opposed to the project.

December 2003 Chief Sophie Pierre, Tribal Chair of the KNC, states her opposition to the proposed resort on December 12, 2003 on behalf of the Ktunaxa.


December 2003 Consultant Anielski prepares a report for EAO confirming “many Ktunaxa” identify “sacred values” in Jumbo area.

January 2004 BC EAO refers to Anielski report saying it may prove to be of little value to the environmental assessment process.

October 2004 Environmental Assessment Certificate (“EAC”) granted with conditions.

2005 Shuswap Indian Band supports project, leaves Ktunaxa Kinbasket Tribal Council; Ktunaxa/Kinbasket Tribal Council becomes Ktunaxa Nation Council.

October 2005 Judicial review of EAC by R.K. Heli Ski. EAC upheld. EAC is not challenged by KNC

January 2006 KNC consultant (Pearse) prepares “gap” analysis of EAO review as it related to Ktunaxa interests – for on-going consultation between Ministry and Ktunaxa.

September 27, 2006 Consultation Agreement between KNC and Ministry.

2006 – 2009 Consultation involving meetings, workshops, studies, capacity funding, and accommodation offers between Crown and KNC. At various times KNC voices opposition while discussing accommodation offers

January 2007 Appeal of Judicial review by R. K. Heli-Ski dismissed.

March 2007

Proctor et al provide study to BC EAO showing Central Purcell Grizzly Bear Population Unit at 54% of habitat capacity rather than 93% habitat capacity referred to in EA process.

July 12, 2007 Comprehensive Master Plan approved. MP not challenged by KNC.

December 4, 2008 KNC advises the Premier that there is opposition to the project.

January 2009 KNC and Ministry exchange Formal notices under Consultation Agreement of Intention to Negotiate Benefits Agreement.

January 16, 2009 Prior to the extension of the EA Certificate, the Ktunaxa again voice their opposition to the ski resort. The Ktunaxa raise Proctor’s 2007 data showing grizzly bears in Central Purcells close to threatened status.


January 26, 2009 Extension of EAC granted for 5 years. EA Certificate states, “the ministry does not believe that there have been any material or specific changes in circumstances since the original environmental assessment review….” KNC does not challenge extension of EAC.

June 2009 Ministry advice to KNC that consultation on Master Development Agreement (“MDA”) complete and Ministry would proceed to decision.

June 9 – 10, 2009 Ktunaxa assert that Qat’muk is sacred site.

July 3, 2009 BC agrees that discussions on “Track 2” which focus on accommodation measures for the impacts would be suspended, while “Track 1” was pursued in meetings with the Minister and/or Premier which was aimed at stopping the project.

September 2009 Confidential meeting with Chief Luke – spiritual information shared – KNC take position project fundamentally irreconcilable with spiritual attachment to area and cannot proceed – no accommodation possible.

December 7, 2009 The Ktunaxa representatives including Chris Luke Sr. meet with Acting Deputy Minister Peter Walters to answer further questions on the spiritual importance on Qat’muk.

August 16, 2010 The KNC provide Confidential Comments on the draft Consultation/Accommodation Summary restating that Qat’muk is a “sacred area of paramount spiritual importance. …. The sacredness of the Qat’muk area is deeply rooted in our [Ktunaxa] history and culture.” KNC raise freedom of religion issue.

October 2010 KNC and Ministry sign Strategic Engagement Agreement, providing funding and Ktunaxa receive treaty land and case offer.

November 2010 Qat’muk Declaration, based in part on “pre-existing sovereignty”, unilaterally proclaiming a “refuge” area where no permanent development will be allowed covering Resort.

2010 – 2011 Further consultation including two Ministerial meetings with KNC, from Ktunaxa perspective only purpose of consultations is to convince decision-makers not to approve Resort.


July, 2011 Minister Thomson meets with KNC in Cranbrook, and then visits site and meets with the KNC, with the Shuswap and the Proponent.

July 11, 2011 KNC provide Minister Thomson with a report from Dr. Shaffer’s concluding there is no evidence that project is in the public interest because of the economic benefits

July 20, 2011 KNC provide a memo to the Minister asserting that the ski resort poses a threat to religious beliefs and practices

March 2011 The KNC write directly to Premier Clark, asserting opposition to the proposed ski resort.

November 2011 The Ktunaxa hold a press conference on the Legislature steps in Victoria, asserting sacred importance of Qat’muk and the Grizzly Bear Spirit.

December 2011 Ministry shares Ministerial Briefing Binders with KNC and Shuswap Indian Band.

December 23, 2011 The Ktunaxa advise the Crown of KNC concerns with draft version of the briefing package.

February 2012 Minister Polak meets with KNC. KNC provides Proctor’s January 2012 Statement regarding inadequacy of WMA and grizzly bear management plan to Ministers Polak and Thomson. In their February 6, 2012 memo, they attach a January 30, 2012 letter reminding Polak and Peter Walters that KNC raised Charter freedom of religion issue in July 2011.

February 2012 The Ktunaxa write to the Premier directly asserting that the resort will have serious and irreparable harm to culture arising from the destruction of a profoundly sacred area.

March 2012 Minister’s decision to approve entry into MDA, written Rationale for Decision approved


SCHEDULE “C”


SCHEDULE “D”

June 3, 2009

Ray Warden Ktunaxa Nation Council 7468 Mission Road Cranbrook, BC VIC 7B5

Dear Ray,

In advance of the meeting that has been planned for June 9, 2009, I would like to take this opportunity to layout the Ministry’s perspective as to the nature and status of the consultation and accommodation process in which we, the Ministry and the Ktunaxa Nation, have been engaged over the course of the past few years.

As you know, the Ministry has the task of determining whether to enter into a Master Development Agreement (MDA) with the proponent of the Jumbo Glacier Resort project, and if it does so, what the content of the MDA is to be. A major part of the decision-making process has been the engagement between the Ministry and- the Ktunaxa Nation. In our view, the discussions between the Ministry and the Ktunaxa Nation have yielded a wealth of valuable information as to the Ktunaxa Nation’s concerns about the proposed resort, and the Ministry acknowledges the dedication that the Ktunaxa Nation’s representatives have demonstrated. Those-representatives have identified the Ktunaxa Nation’s concerns with the proposed resort project and have outlined a considerable number of measures which would form the basis for what has been generally referred to as an accommodation package. The Ministry has on a number of occasions outlined its proposals as to the content of such a package, and the Ktunaxa Nation representatives have done the same. As I will outline below, many proposals remain under active consideration, and I look forward to continued engagement on these matters as we move-forward.

Before I do this, however, it is important to state the Ministry’s view that not all proposals that have been discussed to date represent measures which would mitigate or otherwise accommodate concerns related to the potential impact of the proposed resort on traditions, customs or practices which are said by Ktunaxa Nation to be integral to its distinctive culture. In fact, most of the proposals that have been under discussion can be seen as addressing Ktunaxa Nation interests that are not associated with potential impacts to aboriginal rights within the meaning of section 35 of the Constitution Act, 1982. This “interest-based” approach to negotiation has been a valuable one, and we intend to continue to pursue it irrespective of the position I outline below as to the discharge of the Ministry’s legal duties.


That said, it is our position that the honour of the Crown does not require that these negotiations be completed before a decision is made in relation to the MDA for the resort. In coming to this conclusion the Ministry has taken account of the following considerations:

the numerous significant and meaningful conditions imposed on the proponent by way of the environmental assessment certificate;

the provisions which have been addressed in the Master Plan or which may be built into the MDA and other documents as a result of the concerns expressed and proposals made by the Ktunaxa Nation representatives (Attachment 1):

on the question of grizzly bears, the Ministry of Environment’s due consideration of the recent grizzly bear study and its advice to the Environmental Assessment Office that the ministry does not believe that there have been any material or specific changes in circumstances since the original environmental assessment review which would impact the conclusions reached in the environmental assessment certificate;

the broader societal interest in reasonably timely decision-making having regard to the aboriginal interests at stake;

the Ministry’s commitment to continuing efforts towards addressing the Ktunaxa Nation’s broader interests (that is, interests which are not specific to the potential impact of the resort on asserted aboriginal rights) including but not limited to the sharing of revenues accruing to the-Province from the resort; and

the applicable jurisprudence dealing with the Province’s duty to consult with and accommodate the concerns of aboriginal peoples potentially impacted by Crown conduct or a Crown decision.

In terms of the last point set out above, the Ministry recognizes that the resort area appears to have been part of the broader territory utilized by the Ktunaxa Nation for sustenance. The Ministry has considered all information available to it, and has had regard to the various measures implemented or to be implemented; and is of the view that approval of an MDA for the resort project will not materially impact on the ability of the Ktunaxa Nation meaningfully to continue to engage in such activities in their traditional territory. On the question of aboriginal title, the Ministry acknowledges the Ktunaxa Nation’s claim of aboriginal title to a territory which includes the proposed resort area. While I fully appreciate that the issue of aboriginal title is a difficult one in advance of proof as to its geographic extent, the jurisprudence does seem to require that regard is to be had to the prima facie strength of the case in support of the claim of aboriginal title in the resort area. Taking account of the high threshold set out by the Supreme Court of Canada, the high alpine setting, and the ethnohistorical information available to us, including the research report which we have shared with you, the claim for aboriginal title over the project area is open to significant uncertainty.

For all these reasons it is the Ministry’s position that the requisite scope of the Province’s legal duty is close to the middle of what the Supreme Court of Canada described as a “spectrum” in its Haida decision. While the Court did not specify the


content of the duty.at this point on the spectrum (electing to describe only the “low” end and the “high” end), it is the Ministry s view that the process in which we have been engaging and the accommodation measures that have been or are to be implemented, are reasonable and appropriate in the circumstances

I recognize that the very fact that we are outlining our position will likely not be welcomed, and that you are likely to disagree with our conclusions. For this reason, and notwithstanding the views I have expressed on behalf of the Ministry as to its view about its legal duties, the Ministry intends to continue to work with the Ktunaxa Nation towards a revenue-sharing agreement and towards any other measures that we can mutually agree upon as being of assistance in addressing Ktunaxa interests. In that regard, a number of Ktunaxa proposals remain “on the table” in the sense that they have not been built into a draft MDA, and in the sense that over the course of the past couple of years neither of us has explicitly taken them "off the table”. I propose that we focus on these matters at our upcoming meeting. Our negotiation process to date has not been a rigorous one of offer and acceptance, and while there are probably good reasons for this, I would like to ensure that more clarity and structure is brought to the process, and I commit to doing our part in that regard. I must be candid and state that some of the proposals that the Ministry brought forward in past emails and discussions have, in some cases, turned out on closer examination to be unachievable due to statutory considerations or have simply shown themselves to be unworkable. I understand that this will be of concern to you, but if on occasion the Ministry has gotten ahead of itself it did so out of a genuine desire to explore solutions and was not in any way motivated by a desire to mislead or confuse.

I do want to respond to your letter of February 10, 2009, which makes reference to section 8.1 of the 2006 Consultation Agreement. In the Ministry’s view, during the past couple of years both the Ministry and the Ktunaxa Nation have in fact been engaged in the very sort of negotiations contemplated by section 8.1. From that perspective, the Ministry does intend to continue its engagement with you and indeed to intensify its efforts towards reaching an agreement along the lines described above. To be clear, however, the Ministry does not accept the view that an agreement, within the meaning of section 8.1 must be reached prior to making a decision about the MDA, Rather, the pre-requisite for such a decision is the discharge of the Ministry’s applicable legal duties. For the reasons that I have set out above, it is the Ministry’s position that the legal duties have been met.

As I stated above, I believe the “interest-based” approach to negotiation that we have engaged in has been a valuable to all parties involved. I look forward to our continued discussions.

Yours truly,

Peter Walters Assistant Deputy Minister Tourism Division Ministry of Tourism, Culture and the Aits


ISSUE RESPONSE PROPOSED and/or FURTHER DISCUSSION REQUIRED

Jumbo Valley is area of cultural significance/ has sacred values.

No definitive evidence of cultural significance or sacred values have been offered.

Concern over increased use of Jumbo Valley and valley resources by non- Ktunaxa.

Authority under the Master Development Agreement (MDA) will prevent unauthorized use of portions of the upper valley.'

Mechanisms to protect grizzly bears have been identified; interagency discussions are ongoing.

Displacement of subsistence activities (hunting, plant gathering, etc.) within and around Controlled Recreation Area (CRA) and adjacent to road (hunting limitations)

Hunting and shooting restrictions 400 meters on either side of the access road once It has become a public road Reserve against commercial/ residential development 500 meters either side of the access road from Panorama to Jumbo Glacier Resort. Continuation of plant gathering and berry picking with the CRA Hunting within CRA with agreement of resort

Hunting and access restrictions adjacent to CRA which favour First Nations

Increased use of Jumbo Pass and impact on grizzly bears.

Inter-agency review of grizzly bear management options outside of the resort boundry.

Visual impact of project on Ktunaxa users of Jumbo Pass

Two lift towers were relocated so none are visible from Jumbo Pass except some lifts on the opposite side of the mountains, that are not visible by naked eye, but might be visible with the aid of binoculars (Master Plan - MP);

CRA footprint too large CRA has been reduced 40% (MP).

Prejudices treaty land selection process

Ministry of Aboriginal Relations and Reconciliation issue.


Trail development (particularly Toby Creek & Earl Creek trails)

Trail Management Plan for location, construction and use (MP and Environmental' Assessment Certificate - EAC)_ JGR proposes only one trail to . Glacier Dome from resort (MP)

Wildfire risk Fire Prevention Plan (MP & EAC)

Degradation of . downstream water quality

Environmental Management Plans (MP & EAC) to protect surface water quality: - Water management - Liquid waste - Non-point source waste discharge control - Storm water - Sediment & Erosion Control - Spill contingency Tertiary sewage treatment (MP)

Wator quantity and potential effects of groundwater extraction on Jumbo & Toby Ck stream flows and fish habitat

Proponent contends no significant impact per professional reports - reviewed by MOE (EA and MP reviews)

Parts of the access road above Toby confluence and some of the Jumbo valley have not been archaeologically surveyed

Heritage Conservation Act Complete archaeological surveys -Independent archaeological expert to monitor road construction

Grizzly bear habitat fragmentation and effectiveness

Grizzly Bear Management Plan (EAC) plus Proponent commitments to adaptive management program Bear Smart Community Program Removal of lifts on west side of valley (MP)

Consideration/evaluation by way •of inter-agency discussions, the appropriate mechanism to provide.-grlzzly bear protection in the area adjacent to the resort.

Mountain goat displacement from winter habitat

Considered during EA review (EAC)


Wildlife displacement due to increased traffic


Effects on species at risk (least chipmunk, western toad, peregrine falcon, Swainson's hawk)

Environmental monitor on-site Road kill study and analysis Additional bird study

Displacement of wolverine from denning habitat or movement corridors


.

Direct & indirect mortality of ungulates on access road

Decreased mortality along road due to hunting/shooting ban 400m each side of a public road (MOTI) .

Explore viability to plow out runaway lanes for moose in winter Establishment of speed limits on access road Road kill study and analysis - to inform road alignment and mitigation measures

-Loss of connectivity to adjacent habitats

Removal of ski lifts from immediate area below Jumbo Pass (MP) .

Loss of habitat for and disturbance of birds/ increase in undesirable species

Proponent commitment to effective waste management to control pest species

150 meter buffer around raptor nests


Loss of west slope cutthroat and bull trout habitat

Critical bull trout habitat was determined not to be in resort area due to >20% slope (EAO)

Commitment to provide fish passage on all road stream crossings <20% (MP)

Provincial Riparian Areas Regulation applies

Adopt regulatory requirements for stream crossings (MP/MDA)

Riparian buffers (MP/MDA)

Elimination of bridges (MP)

Impacts to fish and wildlife and their habitat,

Commitments by the proponent, through the MP and

and to water quality - general

EAC to: location of access road; implementation of federal and provincial setbacks and stream crossing guidelines; elimination of bridges; open bottom, culverts; tertiary waste treatment; Grizzly Bear Management Plan; monitoring; Environmental Management Plan; groundwater investigation program; participation in an adaptive management program; enhancing habitat e.g. de-commissioning and re-planting forestry roads; and containing recreational activities. Responses re: specific species were addressed through mitigation measures, including access limitation, monitoring, noxious weed control, project redesign, access road mitigation measures


Invasion of weed species Noxious weed management (MDA) Vegetation Management Plan (EAC)

Use of pesticldes'on private lots

Ban on use of pesticides at the resort

Increased contributions to greenhouse qases .

Considered during EA review

Increased (demand for land & resource tenures in Columbia Valley

Buffer zone, against commercial/ residential development 500 meters either side of access road

Social & cultural impacts to KNC community interests

Land reserve for future housing needs Land reserve for KNC traditional activities

Economic benefits to KNC members and communities

EAC (Appendix F) proponent commitments include: - Employee Equity program with goal of .5% aboriginal employees

Revenue sharing with First Nations


- Education/training support programs in . proportion to the size of each phase of the project

- Reasonable efforts to use qualified FN subcontractors

- Information to third-party : developers and investors in order that they clearly understand and cooperate in the economic and employment participation of First Nations people in the project

- Environmental - Monitoring Station

- Make land available and assist FN in developing an interpretive centre and a condotel

- Efforts to negotiate FN impact management and, ' benefits agreements

- Efforts to negotiate agreements regarding the provision of services

Induced Growth Effects on cost of living, income disparity & quality of life effects on housing, infrastructure density, traffic

Traffic study completed - shows insignificant impacts to region (EA review)

No involvement of KNC in environmental monitoring/ no socio-economic monitoring

Environmental monitoring to be completed in consultation with MOE and MICA (EAC) Requirement for on-siteenvironmental monitoring (MDA)


No involvement of KNC in preparation of Master Plan

The Master Plan was referred to KNC at an early stage and reflected the EA review results FN section of the Master Plan was rewritten In consultation with KNC at the request of MTCA

No acknowledged role for KNC in on-going management and' development of the area

Opportunity for KNC involvement and influence through local government, including position on an Advisory Committee for Mountain Resort Municipality . Participation in development of = conservancy or other mechanism .to manage for grizzly bears in areas adjacent to resort.

No mechanism for KNC involvement in management of cumulative effects (new land & resource tenures)

Required First Nation consultation for new applications

Initiation of a strategic approach to tourism development in traditional territory


Other impacts, on Ktunaxa aboriginal rights' and interests

The Proponent made 25 specific EA Certificate commitments to First Nations related to: - Developing and maintaining ongoing relationships e.g. ongoing consultation; - Environmental mitigation e.g. First Nation interpretive • centre; - Cultural/traditional use and archaeology e.g. hunting and gathering accommodations; and - Employment and economic development e.g. 5% employment equity, training, land. These were subsequently expanded and clarified through 30 commitments in the EA Certificate,


SCHEDULE “E”


SCHEDULE “F”

BRITISH COLUMBIA MINISTRY OF FORESTS, LANDS AND

NATURAL RESOURCE OPERATIONS

Rationale for Decision

March 20, 2012

Jumbo Glacier Resort Master Development

Agreement

Honourable Steve Thomson Minister of Forests, Lands and Natural

Resource Operations


Purpose of Document The purpose of this document is to provide a record of the factors that I have considered, and the

rationale I have employed, as the Minister of Forests, Lands and Natural Resource Operations for

the Province of British Columbia, in making my decision regarding the Jumbo Glacier Resort

Master Development Agreement (MDA), having regard to my statutory decision-making

responsibilities under the Land Act and Ministry of Lands, Parks and Housing Act.

Background

The following is a summary of key approval milestones leading to the development and

consideration of the Jumbo Glacier Resort MDA:

• Interim Agreement between the Province and proponent signed March 1993 and

subsequently renewed to remain in effect to present

• Commission on Resources and the Environment (CORE) designation as a Special

Management Area, with High Values for Wildlife and Ecology and Very High Values for

Recreation and Tourism, which specifically did not preclude the development of a ski

resort in the resulting East Kootenay Land Use Plan of October 1994

• Environmental Assessment commenced in July 1995

• Environmental Assessment Certificate granted to the project proponent in October 2004

• Master Plan review commenced in October 2005

• Master Plan approved July 2007

• Environmental Assessment Certificate extended in January 2009 (to October 2014)

Nature of the Decision

The Province’s All Seasons Resort Policy establishes that the disposition of Crown land for the

use, operation and development of an alpine ski resort may be authorized by an MDA. An MDA is

an agreement between the Ministry of Forests, Lands and Natural Resource Operations and the

Developer that is issued under the authority of the Land Act or the Ministry of Lands, Parks and

Housing Act and sets out the terms and conditions governing the development and operation of an

alpine ski resort.

The decision regarding the issuance of an MDA is the final stage of a proposal process that

begins with a proponent submitting an Expression of Interest to the Ministry of Forests, Lands and

Natural Resource Operations. The process includes a step in which an Interim Agreement may be

issued to a proponent whose formal proposal has been accepted. An Interim Agreement was

issued to the proponent of the Jumbo Glacier Resort project in March 1993 and sets out the terms

and conditions for preparation and approval of an MDA


Scope of the Decision

The Interim Agreement entered into with the proponent of the Jumbo Glacier Resort project requires

the Province to “in good faith attempt to conclude an MDA” where:

1. the Minister is satisfied that the terms and conditions of the MDA are consistent with the

approved Master Plan and with any specific terms that may be set out in the Interim

Agreement; and 2. the MDA is in the form that is approved, or followed at the time of resort development.

This obligation exists within the broader powers, duties and functions of the minister and ministry

under the Land Act and the Ministiy of Lands, Parks and Housing Act. Under those acts, the ministry and

minister are, among other things:

• responsible for the administration of Crown land,

• responsible to dispose of Crown land where the minister considers advisable in the public

interest

• responsible for encouraging outdoor recreation

(Ministiy of Lands, Parks and Housing Act s.6 and Land Act s. 11(1))

Further, the Province has a duty to consult (and accommodate if appropriate) in respect of decisions

that could impact upon asserted aboriginal rights or title. In this case, the aboriginal groups consulted

include the Shuswap Indian Band and the Ktunaxa Nation. (I use the term “Ktunaxa Nation” to refer

to the Ktunaxa Nation Council and its representatives, and the Ktunaxa people and communities).

All of the foregoing that have been considered within the scope of this decision, for reasons set out

below.

Information Sources Used in the Decision

I have considered a range of relevant materials and briefings from staff. The information sources

considered include:

• Aboriginal Interest Consideration Report - Jumbo Glacier Resort - October 2011; an

assessment of overall consultation prepared by staff which includes:

- Ktunaxa Nation Consultation Correspondence

- Consultation/Accommodation Summary

- Review of Anthropological and Historical Sources Relating to the Use and

Occupation of Land Revised July 2009

- First Nations Socio-Economic Assessment: Jumbo Glacier Resort Project

- Jan 22 2004 letter to Anielsk

- Maps showing claimed traditional territories of Shuswap Indian Band and

Ktunaxa Nation Council

- History of Shuswap Kinbasket People in Ktunaxa Traditional Territory


- Socio/Economic Study Shuswap Indian Band

- Ktunaxa Aboriginal Interests: Traditional Use and Archaeological Overview of

the Proposed Jumbo Glacier Alpine Resort

• Jumbo Glacier Resort Environmental Assessment Report - August 2004, including

Compendium of Proponent Commitments

• All Seasons Resort Policy - March 2011

• Land Use Report - October 2011, including consideration of:

- Jumbo Glacier Resort Master Plan - November 2010

- Jumbo Glacier Technical Review Committee - Response Summary Table

- Ministry of Tourism, Culture and the Arts and the Grizzly Bear Consultation

Flowchart

- CORE Recommendations

• My meetings with representatives of the Ktunaxa Nation and the Shuswap Indian Band

• Correspondence received from Ktunaxa Nation regarding the Qat’muk Declaration

• Correspondence received from the Shuswap Indian Band regarding the Qaf muk

Declaration

Consideration of Factors

Having regard to my responsibilities under the Land Aci the Ministry of Lands, Parks and Housing Act

and with respect to the All Seasons Resort Policy I consider the following to be relevant factors for

the purposes of this decision

MDA:

I have considered the terms and conditions of the MDA and concluded that it is consistent with

the Master Plan and Interim Agreement entered into between the Ministry of Forests, Lands and

Natural Resource Operations and the proponent.

Socio-economic Viability:

I have considered the Socio-economic and Market analyses included in the Master Plan

and the Environmental Assessment processes, as well as the Economic Benefits review

of the project, commissioned by the Ktunaxa Nation, written by Marvin Shaffer and

Associates Ltd.

I also note that the relevant resort policies and guidelines and the MDA have been drafted to

protect the interests of the Province. In particular, the MDA requires completion of recreational

infrastructure (access, lifts, runs, day lodge, etc.) as a precondition of any associated land sales

for residential construction in each phase of the Resort Master Plan, ensuring that the overall

development is balanced and controlled. I also recognize that economic conditions will

appropriately dictate the pace of development, which could stop or pause at the completion of any

given phase.


Further, I note that the proponent team is knowledgeable and experienced in the development of ski

resorts in BC. In reviewing the proponent’s assumptions with regard to the economic viability of the

project, I found them to be reasonable, conservative, and consistent with other resorts in the region,

in aspects including but not exclusive to market analysis, development feasibility, economic benefits

and First Nation business opportunities. The assumptions are in my opinion reasonable.

For the above reasons, I have concluded that, on balance, the business plan and analysis are

reasonable and that the project can be economically viable,

First Nations Consultation:

Relevant legal principles

An aboriginal right is a custom, practice or tradition integral to the distinctive culture of an

aboriginal group at the time of contact with European settlers (generally regarded as 1793 in

British Columbia). Aboriginal rights may be exercised on and associated with land, but they are not

an interest in the land itself.

Aboriginal title is an aboriginal interest in land, based on exclusive use and occupancy of an area of

land by aboriginal groups, at the time of assertion of sovereignty (1846).

Where (as is the case here) aboriginal rights and title are asserted but not yet proven, the Crown has

a duty to consult, and potentially accommodate, those interests where a Crown decision or

authorization may have an adverse impact on such asserted rights or title. The Supreme Court of

Canada has made clear that the depth of consultation in such circumstances ranges from “mere

notice” to “deep consultation”, depending on the strength of claim and the potential impact of the

activity on the asserted right.

The courts have also made clear that aboriginal consultation can occur through existing processes,

including the environmental assessment process.

Shuswap Indian Band

The Shuswap Indian Band considers that their aboriginal interests were duly addressed through

consultation undertaken during the Environmental Assessment and have indicated, in writing, their

support of the project.

Ktunaxa Nation

With respect to the Ktunaxa Nation, I have considered the consultation process as outlined in the

materials referred to above, and in particular the “Consultation/Accommodation Summary, Ktunaxa

Nation - Jumbo Glacier Resort” and conclude that it has been sufficient to discharge the Crown’s

duties.

I reach this conclusion for all of the reasons set out in Consultation/Accommodation Summary (which

is over 70 pages long and includes a number of attachments) and other relevant documents referred

to above, in particular would highlight the following:


• The province has determined that the Ktunaxa Nation’sprima facie claim:

- to gather berries and plants in the proposed project area is moderate to strong

- to hunt and fish in the proposed project area is strong

- to aboriginal title in the proposed project area is weak

• With respect to the Ktunaxa Nation’s asserted spiritual interests in the area (referred to as

Qat’muk), the Consultation/Accommodation Summary notes how the Crown has endeavored

to honourably give consideration to those interests, while at the same time applying the tests

for determination of aboriginal rights as set out in relevant case law. In this regard, the

Consultation/Accommodation Summary states at pages 49-51:

It is... not clear whether any of these values can take the shape of a constitutionally protected

aboriginal right or whether such a claimed right can be reconciled with other claimed

aboriginal rights and Ktunaxa access to the valley for a variety of traditional and modem uses,

including hunting, gathering and fishing. The Ministry’s challenge is to give due respect and

recognition to this sensitive spiritual information, which has been provided by the Knowledge

Keepers in a trusting way, and at the same time, assess it in the context of the Crown's

consultation and accommodation obligations in respect of aboriginal rights recognized by

section 35 oiths Constitution Act> 1982....

The Ministiy sincerely recognizes the genuinely sacred values at stake for Ktunaxa leadership

and the Knowledge Keepers in particular, however it has determined on a preliminary basis

that a prima facie claim to an aboriginal right of this nature is weak. In particular, there is no

indication that valley would have been under threat from permanent forms of development at

the time of contact such that the right claimed would have been one that was exercised or an

aboriginal tradition, practice or activity integral to the culture of Ktunaxa. In addition, in the

Ministry’s view the claim to such a right is weakened where the details of the spiritual interest

in the valley have not been shared with or known by the general Ktunaxa population. The

Ministry makes these preliminary statements because the nature of the consultation obligation

requires it be done, and hopes that no personal or cultural disrespect is perceived. The

Ministiy believes that there is difference in respecting certain personal and spiritual beliefs or

values, which the ministry hopes it has done, and then weighing this information in the context

of a legal aboriginal rights claim, which the Ministry believes it has done in as respectful a way

as possible.

• The documentation sets out a very extensive record of consultation with the Ktunaxa Nation

under various provincial initiatives over the last two decades including the Commercial Alpine

Ski Policy, the Commission on Resources and the Environment, the Kootenay- Boundary

Land and Resources Management Plan, the Environmental Assessment Process, and the

Commercial Alpine Ski Policy under the All Seasons Resort Policy.

• The Consultation/Accommodation Summary contains detailed information on many

substantive issues raised by the Ktunaka, and it contains extensive information about

accommodation measures that have been taken (through the commitments contained in the

environmental assessment certificate or otherwise) to mitigate the impact of the project in

respect of those issues. By way of example, these include:


- The overall area of the controlled recreation area has been reduced by

approximately 60% and the total resort development area has been reduced to

approximately 104 hectares at build out (p. 40)

- there are requirements for on-site independent environmental monitors during all

construction to address, among other things, water quality fish and wildlife (p.

22)

- as a condition of the MDA, the developer will be required to provide for

continuing use by the Ktunaxa of portions of the controlled recreation area for

the practice of traditional activities including berry picking and plant gathering (p.

36)

- the approved Master Plan shows the removal from the controlled recreation area

of the lower Jumbo Creek area that has been perceived as having greater

visitation potential from Grizzly bears. It has also been amended to remove ski

lifts on the West side of the valley, where impact to Grizzly bear habitat was

expected to be greatest, (p. 44)

- to address potential impacts in relation to Grizzly bears and aboriginal claims

relating to spiritual value of the valley the Province will pursue the establishment

of a Wildlife Management Area (WMA). Further, the Ktunaxa are invited to

engage with the province in the development and implementation of the WMA

objectives, (p. 52)

• Overall, the consultation applied in this case is at the deep end of the consultation

spectrum and having regard to the accommodation measures, is adequate in respect

of those rights for which the strength of claim is strong, and for which potential impacts

of the project could be significant.

• Given the extensive mitigation and accommodation measures, and having regard to

the continued ability of the Ktunana Nation to continue exercising its asserted

aboriginal rights, the potential impact of the master development agreement and the

proposed project itself is considered to be reasonable when balanced against the

other societal benefits of the project.

Environmental Considerations;

I have considered the environmental concerns regarding the Jumbo Glacier Resort Project which

were raised during the Environmental Assessment and Master Plan review processes. The

primary concerns appear to be related to impacts to wildlife, particularly to Grizzly bears which,

due to their large territory, serve as an “umbrella species” for other wildlife. Studies, including a

cumulative impact assessment, were completed and reviewed, and the proponent undertook

DNA analysis to identify bears using the project area.

Ten of the 195 commitments of the proponent in the Environmental Assessment Certificate are

specifically related to Grizzly bear management and minimizing impacts to the Grizzly bear

population and additional conditions of the MDA are intended to mitigate impacts to wildlife and

habitat. Meetings which focused on residual impacts to Grizzly bears outside of the Controlled

Recreation Area included provincial government agencies, and the Ktunaxa Nation as well as

government and non-government biologists. As a result of those meetings, Ministry officials


committed to pursue the designation and implementation of a Wildlife Management Area in

watersheds adjacent to the resort (outside of the Controlled Recreation Area), if the MDA is

approved. The Province will continue to pro-actively manage the Purcell Mountain Grizzly bear

population and other wildlife through existing legislation and policies.

All aspects of the environment, including water, air, noise, glacial ablation, plants and animals,

fish and wildfire, were considered during the public, agency and First Nations reviews of the

Project. The Environmental Assessment Office concluded that “practical means have been

identified to prevent or reduce to an acceptable level all potential significant adverse effects

arising from the Project”, and further conditions intended to minimize impacts to the environment

have been included in the MDA. Environmental impacts will be effectively minimized through the

development and monitoring of Environmental Management Plans which include proactive

mitigation measures, monitoring and adaptive management mechanisms.

For these reasons I have concluded that, on balance, the commitments and strategies in place

are reasonable and minimize the potential impact to the environment and specifically, to Grizzly

bear habitat.

Other factors:

I have also considered the following additional factors which are relevant to determining the public

interest in respect of this matter:

• The proponent has estimated that the total capital investment of the resort could total

$900 million in capital investment, and that 750 to 800 permanent, direct jobs could

result once the project achieves full build out.

• While there is not unanimous support for the project, all interested parties have had

extensive opportunities to make their views known and have them considered as part

of the environmental assessment process and other government engagement

processes.

Conclusion and Decision

For the reasons noted above and having regard to my responsibilities under the Land Act and the

Ministry of Lands Parks & Housing Act, I have decided to approve the Master Development

Agreement for the Jumbo Glacier Resort, effective March 20,2012.

Honourable Steve Thomson

Minister of Forests, Lands and Natural Resource Operations

bc supreme court judgement, re ktunaxa nation v. british columbia (forests, lands and natural...

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