10/23/2013 05:11 EDT | Updated 12/23/2013 05:12 EST

Court says No to resort municipality's application to have say in review

VANCOUVER - A municipality created for the sole purpose of propelling the development of North America's first year-round ski resort has been denied a chance have a say in a judicial review of the project prompted by an area First Nation.

The B.C. Supreme Court said in a ruling posted Wednesday the matter is strictly between the province, which approved the project last March, and the Ktunaxa Nation.

The $450-million Jumbo Glacier Resort will be built in B.C.'s Purcell Mountains, about 55 kilometres outside of Invermere and 250 kilometres west of Calgary.

After it was approved, the Ktunaxa Nation applied for a judicial review later in the year, arguing the resort will be built on its sacred territory in the East Kootenays and that the province's approval of the project infringes on aboriginal rights and interests.

Court documents say the Ktunaxa Nation consider the area known to them as Qat'muk as the place where grizzly bears roam, and that the resort would affect their traditional religious practices involving "grizzly bear spirits."

The band has asked the court to grant a temporary injunction against construction until a decision is made, as well as a permanent injunction against development in the Qat'muk area.

The Jumbo Glacier Mountain Resort Municipality was established last year to facilitate the development of the ski resort. It has a mayor and two councillors, but there are no houses and no residents.

The municipality had applied to be part of the judicial review proceedings slated to begin in the new year, arguing its interests would be directly impacted by an injunction.

"The municipality submits that its whole raison d'etre would be affected were an interim injunction granted, as that relief would affect the power of the municipality to control the development of land within its boundaries," court documents said.

"The applicant further submits almost all of the work currently undertaken by the municipality is directed to the development of the resort."

Preparations for cat skiing at nearby Farnham Glacier have already begun, and the resort municipality's acting chief administrative officer Mark Read said in an affidavit that staff have been preparing zoning bylaws and applying for building permits for the construction of a ski lodge and recreation infrastructure.

But B.C. Supreme Court Master Grant Taylor ruled the dispute concerns only the Ktunaxa Nation and the provincial government.

"In my view, in the event the petition is successful such that an interim or permanent injunction is granted, the municipality would only suffer, in the vernacular, collateral damage, and thus it is not convenient to determine the issues in this proceeding as against the municipality as a party," he said in his decision.

Taylor contrasts this petition to another filed by the West Kootenay Community Ecosociety, saying in that case, the municipality is directly affected because the petition asks for its incorporation to be quashed.

The Jumbo Glacier Resort has been a source of contention in the East Kootenays region for more than 20 years. Construction was halted briefly during the summer when a handful of protesters attempted to block machinery from going up Farnham Glacier.