The Supreme Court of British Columbia dismissed an application by the petitioner Ktunaxa Nation Council for an order that the two-week hearing of its petition take place in Cranbrook, rather than Vancouver.

The underlying proceeding concerns the March 2012 decision of the Minister to approve a Master Development Agreement with the co-respondent Glacier Resorts Ltd. for the development of the Jumbo ski resort in the East Kootenays. The petitioners allege that the Minister failed to satisfy the duty to consult and accommodate, and that the development of the ski resort would infringe their rights under s. 2(a) of the Charter of Rights and Freedoms. They allege that the area of the proposed ski resort is a sacred area known as Qat’muk, and seek a permanent injunction to prohibit any development in the area.

A two-week hearing was scheduled for January 2014 in Vancouver, although a Notice of Hearing had not yet been filed. In November 2013, the petitioners filed this application for an order that the hearing take place in Cranbrook. In oral reasons, Sewell J. dismissed the application. The parties agreed that the applicable test for change of venue can be found in cases like McPhatter (1966) and Stoney Creek (1997).  Sewell J. held that, in the circumstances of this case, the application for a change of venue was effectively an application for an adjournment. The evidence demonstrated that it was unlikely that a 10-day hearing could be scheduled for Cranbrook during 2014 unless there was a form of special sitting. There would be substantial prejudice to Glacier Resorts since it is obligated by the terms of the Environmental Assessment Certificate to begin substantial construction by October 2014. Sewell J. stated that there was some merit to the petitioners’ submissions that it is preferable to have matters of local importance heard in the area that is affected by the proceeding, and that it is appropriate to have the proceeding accessible to observation and participation by the affected First Nation. However, the balance of convenience overwhelmingly required the hearing to take place in January 2014, which meant that it must be held in Vancouver.

The case is not reported. We note that the 10-day hearing took place before Mr. Justice John Savage in January 2014, and the Court reserved judgment.


Scott Kerwin


Aboriginal Law