Making a mountain out of a ski resort

I tentatively assume that may be the end of the matter.

Delays in development occur for many reasons, but a case recently concluded in the Supreme Court of Canada I think woefully illustrates one of the principal reasons why many potentially-positive business opportunities eventually fall by the wayside in this country.

I want to say this appears to be a particular problem in British Columbia, but I know better. There is no accounting for the contentious patience of organizations prepared to go ‘all the way’ through the court process ‘to win a point’. Is the cost irrelevant? Likely.

The decision by the court has finally resolved the long-standing case concerning the Ktunaxa Nation and the Jumbo Glacier Resort, a proposed year-round ski resort in southeastern B.C. that has been in the regulatory process since 1991.

Yes, since 1991!

This particular case concerned freedom of religion, aboriginal spirituality and how Charter rights should be applied when it comes to land-use decisions – including those particular sites considered to be sacred. On religious grounds, the Ktunaxa Nation opposes the development in a region of B.C. they call Qat’muk.

The region at the foot of Jumbo Mountain, the Ktunaxa contends, is of spiritual significance to the First Nation because they believe it is home to Grizzly Bear Spirit. They argued the proposed resort would drive the spirit from the territory.

Last week the court stated approval of the ski resort, deciding the resort doesn’t violate their constitutional right to freedom of religion.

The high court decision means the proposed resort development in southeastern British Columbia is a step closer to reality.

I tentatively assume that may be the end of the matter.

I’m clearly no legal expert but when – out of curiosity – I looked a little further into the published ruling I was surprised to view the range of intervenors in the case – 17 of them, not unexpectedly beginning with the Attorney General of Canada.

Then there was the Attorney General of Saskatchewan. OK , but the Canadian Muslim Lawyers Association, South Asian Legal Clinic of Ontario, Kootenay Presbytery (United Church of Canada), Evangelical Fellowship of Canada, Christian Legal Fellowship, Alberta Muslim Public Affairs Council, Amnesty International Canada, the Te’mexw Treaty Association, Central Coast Indigenous Resource Alliance, Shibogama First Nations Council, Canadian Chamber of Commerce, British Columbia Civil Liberties Association, Council of the Passamaquoddy Nation at Schoodic, Katzie First Nation, West Moberly First Nations and Prophet River First Nation.

Perhaps a normal representative group of interested intervenors – but eye-opening to me that such a ‘peculiar case’, again, in my mind, would attract the intervention of such a wildly diverse group.

It is also however, a more valid indicator of how such cases might get bogged down in religious rights arguments from so many sides and interests.

It winds up, nonetheless, in a decision that lets the development move ahead.

Will it? Over and above the principles involved a case that remains before the courts from 1991 to 2017 certainly raises my eyebrows a bit. So, I don’t know!

I guess that is one of the peculiarities of the fine lines drawn within the law.

Maybe the 1883 opinion of Mr. Bumble, Oliver Twist’s fictional character, still holds some water…

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass — an idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”

There’s debate that Dickens may have picked up the phrase from a earlier play written in the 1620s – but I thank goodness that the question never became a matter of copyright before the courts.

It might be unsolved today.

But it is still a useful phrase for me to use to express as a comment about a court case about a ski lodge scaring away a bear spirit, that takes 26 years to be brought to an end by presumably the best legal minds in Canada.

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