ÎYÂRHE NAKODA – The Three Sisters Village and Smith Creek area structure plans threaten to potentially destroy or block access to historical sites, artifacts and grave sites, according to Îyârhe (Stoney) Nakoda First Nation.
A court application filed Dec. 19 by Stoney Nakoda Nation (SNN) against the Town of Canmore and provincial ministries of municipal affairs and Indigenous relations seeks to void bylaws passed by the Town to accept the ASPs in October.
The application argues the bylaws violate Indigenous and treaty rights under Canada’s Constitution Act and were passed without consulting the Nation, whose traditional territory includes Canmore, known as Chuwapchîchiyan Kudebi in Stoney.
“The Stoney Nakoda believe that the severity of the potential Treaty rights impacts resulting from the adoption of the bylaws require deep and significant consultation and accommodation, yet to date, no such consultation has occurred,” states a press release from Stoney Tribal Administration.
“The adoption of the bylaws has already been met with significant resistance from the Stoney Nakoda, whose primary concerns include the impacts on their constitutionally protected Treaty rights to hunt, fish, gather, and exercise their cultural and traditional practices. These impacts result from the proposed development’s negative effects on local plant and animal health.”
An affidavit from Bill Snow, acting director of consultation with Stoney Tribal Administration, further argued any archaeological assessments done on the lands covered by the bylaws is outdated and did not include the Nation as a participant.
“There are numerous historical cultural sites and grave sites along the eastern slopes of the Rocky Mountains and the Foothills, the Stoney Nakoda have since time immemorial used and occupied the Canmore and Bow Valley corridor region for the exercise of their Treaty rights and traditional and cultural practices including, but not limited to, sustenance hunting, harvesting and gathering,” the affidavit states.
According to Section 35 of the Constitution Act, the Crown must consult with First Nations when their rights may be adversely affected. Snow argued this duty must be upheld by the province and the Town.
He said in his affidavit the Nation has never been consulted on the Three Sisters Mountain Village Properties Ltd. (TSMVPL) development, dating back to when the Natural Resources Conservation Board (NRCB) approved the company’s application to develop within Canmore in 1992.
The Town held a public hearing on the ASPs that came forward in 2021, which the Nation participated in and advised the Town the plans triggered an obligation to consult.
The Town later rejected the ASPs, but TSMVPL appealed Canmore’s decision under Section 619 of the Municipal Government Act to the Land and Property Rights Tribunal (LPRT).
In May 2022, the LPRT issued its decision upholding the NRCB approval, ordering the Town to adopt the ASPs. This was after 15 days of hearings that saw SNN participate with limited intervenor status during the Smith Creek hearing.
The Court of Appeal, which accepted the Town’s request to appeal the LPRT decision, determined in its Oct. 3 judgment that the LPRT’s decision could not be changed.
TSMVPL continues to have a $161 million lawsuit against the Town and the previous council. Thunderstone Quarries, which owns lands in the Smith Creek ASP, also has a $63.5 million lawsuit against the Town.
The court application, however, did not ask for a stay of LPRT decisions and the adopted ASPs, meaning the advancement of the two plans will continue. A party can file for a stay, but it would be highly costly since the court can ask the person or organization asking for a stay to financially compensate those impacted by the decision to pause development.
Representatives from the Town and TSMVPL met Oct. 31 for a pre-application meeting on the Three Sisters Village ASP and the first phase of the plan continues to move forward.
Canmore council adopted the two ASPs Oct. 24. TSMVPL and the Town had a pre-application meeting for Three Sisters Village ASP Oct. 31. The Smith Creek ASP application is expected to be submitted in the coming weeks.
On Oct. 20, after the Town set a special meeting of council to accept the ASPs, legal counsel for SNN wrote to the Town and the Minister of Indigenous Relations Rick Wilson again requesting consultation and studies to understand the cultural and traditional uses of the land to the Îyârhe Nakoda before planning to adopt the ASPs.
Snow’s affidavit shows Canmore CAO Sally Caudill confirmed receipt of the letter Oct. 20 and, on Oct. 23, wrote in response that the Town “value[s] their ongoing relationship with the Stoney Nakoda Chiefs, councils and administration, and members of the community,” but was legally obligated to pass bylaws accepting the plans.
“When the ASPs were originally being developed and before first reading and the public hearing, Town administration sent the ASPs to the Stoney Nakada administration for comment,” the CAO wrote. “Due to the LPRT and court decisions, we cannot require consultation on the ASPs now.”
The letter mentions a conceptual scheme to come now the plans have passed. “Our corporate directive for this work identifies the potential for Indigenous consultation and input as part of the scope of technical studies that would be part of a conceptual scheme,” Caudill wrote, adding the Town has already reached out to Snow on the matter.
“The Town of Canmore will be advancing the Stoney Nakoda request for consultation as part of the pre-application meeting with the applicant.”
Canmore Mayor Sean Krausert acknowledged the court application in a statement sent to the Outlook.
“We will be filing a response to this application for judicial review and will not be providing further comment while the matter is before the court,” the mayor said.
Krausert finished his statement saying the Town is committed to truth and reconciliation and relationship-building with Indigenous peoples, including the Îyârhe Nakoda First Nation.
“We are proud of the relationships we have built with our Stoney neighbours and will continue working with them in whatever way we can,” he said.
Several environmental groups including the Canadian Parks and Wilderness Society, Alberta Wilderness Association, the Yellowstone to Yukon Conservation Initiative and local organizations like Save Grizz Corridor have spoken out against the developments over fear they will negatively impact quality habitat and movement corridors for animals, including at-risk grizzly bears and other species.
Snow’s affidavit talks about the significance of the grizzly bear to the Îyârhe Nakoda, which considers the animal sacred and a “centrepiece of both its familial culture and tradition hunting and gathering practices.”
“Facilitating an inclusive assessment of these values is a necessary step toward true reconciliation and relationship-building between neighbours,” states the affidavit.
SNN recommends developing a construction monitoring program in the absence of voiding the bylaws and a traditional land use assessment conducted by the Nation.
“This is recommended to safeguard the undocumented Stoney Nakoda site areas within the proposed project area and to culturally mitigate any impacts that they will face during construction,” the affidavit states.
The application is expected to be heard in the Calgary Court of King’s Bench at the Calgary Courts Centre Feb. 6, 2024.
The Local Journalism Initiative is funded by the Government of Canada. The position covers Îyârhe (Stoney) Nakoda First Nation and Kananaskis Country.
