The B.C. Supreme Court has sided with a ski resort developer who argued a decision that determined a proposed ski resort was not ‘substantially started’ was unfair.

Court sides with developer in Jumbo ‘substantially started’ dispute

Resort developer successfully argues 2014 decision that halted the project was unfair

The B.C. Supreme Court has quashed a decision from a former provincial cabinet minister that determined a proposed ski resort west of Invermere was ‘not substantially started’.

Justice Carla Forth ruled in favour of Glacier Resorts Ltd, who successfully argued that a 2014 decision from Mary Polak, which effectively ground the resort development to a halt, was ‘unreasonable’.

READ: War of words as Jumbo resort decision heats up

Polak, then the Minister of Environment, made her decision, citing that she was not convinced that the construction activity on various components of the development plan met the threshold of a substantially started project.

The decision forced the expiration of an Environmental Assessment Certificate, a necessary government permit that Glacier Resorts Ltd needed to continue construction.

“This is not a case in which Glacier showed a casual or dilatory approach to this Project or the granting of the [Environmental Assessment Certificate],” wrote Justice Forth. “On the contrary, the record before the Minister supported that Glacier had been proactively trying to move this Project forward since its initiation approximately 27 years ago.

“Glacier’s actions demonstrated an understanding and desire to get on with the Project within a reasonable amount of time once the EAC was issued.”

Forth ordered the decision be remitted to the Ministry of Envioronment, for the current minister to reconsider the interpretation of Environmental Assessment Act.

She also rejected an request from Glacier Resorts Ltd to declare the project substantially started, in the form of a mandamus order, but also awarded undisclosed financial costs to the company from the Ministry of Environment.

Local environmental groups opposed to the proposed resort expressed their disappointment to the court ruling.

John Bergenske, with Wildsight, said the developer shoulders some of the blame for project delays.

“There’s a lot in the decision about the slow-moving bureaucratic process, but having been deeply involved in this fight for years, we know that Glacier’s own delays in meeting the deadline were a major factor,” Bregenske said.

Bregenske argues the area is sensitive wildlife habitat and needs to be protected.

“The construction of this project would fragment a critical section of one of North America’s most important wildlife corridors— an area grizzlies depend on to maintain healthy populations regionally and even continentally,” he said. “We remain committed to doing all that we can to ensure this region is protected.”

Plans to develop a ski resort at Jumbo Glacier date back nearly 30 years.

The developer initiated talks with the province in 1990 but have run into regulation challenges and encountered opposition from local Indigenous organizations and environmental groups ever since.

An Environmental Assessment Certificate was issued in 2004 with a five-year term that was renewed in 2009. A Master Development Plan was approved in 2012, a document that touched off a separate legal dispute brought forward by the Ktunaxa Nation Council that went all the way to the Supreme Court of Canada.

READ: Supreme Court of Canada dismisses Ktnuaxa appeal

The Ktunaxa Nation Council argued that they were not adequately consulted by the province when the Master Developmet Plan was approved. The First Nations group also argued that the development would have violated their religious beliefs as the area, known as Qat’muk, is home to the Grizzly Bear Spirit and is considered spiritually significant.

A resort municipality was created in 2012, and work, such as soil testing, design development and road construction, began on the Farnham glacier side.

The company blames a lost construction season in the summer of 2013 on protesters, and argued the province’s removal of a bridge in 2012 cut off access to the development, as it had to obtain the necessary permits to build a new bridge.

On the Jumbo Glacier side, building permits were issued in 2014 for construction of a day lodge and service building, in which concrete foundations were poured in an identified avalanche hazard area.

The proposed ski resort plan features 5,500 bed-units and a 110 hectare resort base area, along with up to 23 ski lifts and an average of 2,700 skiers a day at full build-out.

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