Appeal court sides with province over Jumbo ski resort decision

A former cabinet minister determined the project was ‘not substantially started’ in 2015

The B.C. Court of Appeal has upheld a decision by the provincial government, which determined that a proposed ski resort near Invermere was ‘not substantially started’ in 2015. Black Press Media file photo.

The B.C. Court of Appeal has upheld a provincial government decision that determined a proposed year-round ski resort west of Invermere was ‘not substantially started’ nearly four years ago.

Former Environment Minister Mary Polak found that Glacier Resorts Ltd. had not completed enough construction and development at the project site in the Jumbo Glacier Valley in 2015.

Her decision meant the expiration of an environmental assessment certificate, an important permit that the proponent needed to continue developing the ski resort’s proposed build-out.

READ: Glacier Resorts appeals B.C. government decision on Jumbo proposal

After Polak’s decision, Glacier Resorts Ltd. took it to a judicial review, which ruled in their favour by finding that the minister’s conclusion was unreasonable. However, the Ministry of Environment appealed that outcome, leading to Tuesday’s appeal court ruling.

Two of the three judges on the appeal bench allowed the government’s appeal, while a third judge held a dissenting opinion.

“The Minister clearly recognized that a ‘substantial start’ on phase 1 did not require construction to have begun on all aspects of it, nor did it require completion of any part of it,” wrote Justice Harvey Groberman, which was concurred by Justice Gregory Fitch. “She did not assume that any operation of the resort was required in order to meet the “substantial start” criterion.

“The Minister was of the opinion that what was accomplished was not a ‘substantial start’. That assessment was a reasonable one. The construction that was done was limited and was aimed, at a development much more constrained than that contemplated by the environmental assessment certificate.”

The appeal court ruling reinstates Polak’s original decision and sets aside the judicial review ruling.

However, the dissenting judge, Justice John Hunter, affirmed the decision made by the lower court judge and suggested sending the matter back to the Minister of Environment for reconsideration.

“The issue was not whether the Project had been started but whether it had been substantially started,” wrote Hunter. “The Minister made that assessment by considering the ‘physical activity undertaken’ and measuring it against what she referred to as ‘the threshold of a substantially started project’, while expressly refusing to consider factors that could have informed whether the substantialness of the start met the statutory standard in all of the circumstances.”

EcoJustice, which has been litigating the project on behalf of Wildsight and the Jumbo Creek Conservation Society for years, celebrated the appeal court ruling.

“Projects that have a significant environmental impact, like Glacier Ltd.’s proposed Jumbo Valley Resort, must be assessed using current information, not data more than a decade out of date,” said Olivia French, a lawyer for EcoJustice. “Respecting the expiration dates of environmental assessments is essential, because scientific understanding and best practices can change dramatically in a decade.

“It stands to reason that developers can’t be allowed to hang on to an Environmental Certificate for ever. The original assessment for this project was conducted in the 1990s, and was based on information which is now outdated. The law in B.C. requires project proponents to start their projects within 10 years of receiving their certificates to ensure that up to date information and the best technology is used to avoid the harmful impacts of large projects like these.”

The ski resort proposal has been in development for nearly 30 years, and has been taken to the Supreme Court of Canada by the Ktunaxa Nation, which argued that they were not adequately consulted for the project’s master plan and that it violates their religious rights by being built in a spiritually sensitive area.

READ: Supreme Court of Canada dismisses Ktunaxa Jumbo resort appeal

Glacier Resorts Ltd. has been working to build a ski resort in the area since the early 1990s.

The base of the resort proposal would cover 104 hectares with a hotel servicing 5,500 guests and 750 resort staff. Further development would include condos, vacation homes and other amenities reflective of resort communities.

Ski-able terrain would cover over 5,000 hectares on four separate areas with elevations up to 3,400 metres.

Glacier Resorts Lt. received an Environmental Assessment Certificate in 2004, and was granted a five-year extension in 2009 in order to complete a Master Development Agreement.

By October 2014, on-site construction included the concrete floor slab of a day lodge, a concrete floor slab of a service building, foundation for chair lift anchors and various bridge structures and road work necessary to access the site.

However, aspects of the project were considered in non-compliance under the terms identified in the Environmental Assessment Certificate.

Glacier Resorts Ltd. had argued that Polak should have considered not just the physical construction, but the administrative work as well. The proponent said it was also hindered by the provincial government closing a forest service road and removing a bridge necessary to access the site, as well as protesters who blockaded the site which delayed construction.



trevor.crawley@cranbrooktownsman.com

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