Rules for Downhillers

It’s not every legal decision that comes with its very own downhill ski diagram. You know, what they give you when you buy your lift ticket. But that’s what’s tacked on to the latest BC ruling (a native legal loss) and if ever there was a picture worth 1000 words – this is it. See that area highlighted as “Coming Soon” – that’s the basis for the latest Adams Lake First Nation’s legal challenge respecting its “claims to Mount Morrisey” – also known as Sun Peaks Resort.

Mount Morrisey - Sun Peaks Resort - Ski Hill Claim Map

Putting aside for the moment the rights and wrongs of this particular development, one has to wonder whether this bit of traditional territory was worth fighting over? Especially given the extensive archeological, historical, and ethnographic overviews cited by the court (1999 / 2000 / 2001 / 2003 / 2008 / 2011) that culminated in a finding: “no archeological sites or materials … and concluded that west Mount Morrisey had a low archeological potential given its steep slopes” (para 84).

In fairness to the native side, their issue was how much development goes ahead based on an earlier approval for a phased development: …

Adams Lake asserted that the applications had to be considered within a comprehensive consultation process pertaining to the entire resort development at Sun Peaks, not just the additional Mount Morrisey runs. The Province took the position that only consultation on the impact of the additional runs was necessary. (para 10)

That presumably is where the downhill diagram comes into play – a rare addition to any ruling: …

One has only to look at the map showing ski runs crisscrossing every aspect of Mount Tod and a large portion of Mount Morrisey to see that the area in question is effectively sandwiched between an existing developed area of the mountain and the village. Beyond the resort boundaries there is a great deal of untouched land, but within the resort boundary the land has already been developed extensively. Absent some unique feature of the tract of land in question, it is difficult to see how its development in accordance with the Master Plan could significantly impact claimed rights. In other words, it is the resort development as a whole that has altered the landscape and significantly curtailed claimed rights, not the proposed additional development of part of Mount Morrisey. (para 76) (author’s underlining)

In the final analysis, the court awarded the ski resort its legal costs payable by the First Nation, meaning the court deemed the native-side’s case was without merit.

Today, with the native legal winning streak ringing-in at just over 180 rulings, this latest loss adds to the judicial tightening-up that’s clearly underway; happening for any number of reasons (see my recent entry “Hot Time Summer in the City“) and one might well be that natives are over-reaching. So here are my rules for downhillers:

  1. Look before you leap since wipeouts can be costly
  2. Buying a lift ticket doesn’t always mean it’s going to be great skiing
  3. Consider transforming your legal empowerment into political empowerment
  4. Negotiate while you’re at the summit of legal success.

 

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