The Ktunaxa Nation Council says it is ‘deeply disappointed’ in a B.C. Supreme Court decision that sided with a developer in an ongoing dispute over a proposed ski resort in the Jumbo Valley west of Invermere.
Last week, Justice Carla Forth ruled that a cabinet minister’s decision in 2015 determining the proposed Jumbo Glacier Mountain Resort not ‘substantially started’ was unreasonable. Former B.C. Liberal cabinet minister Mary Polak’s decision that found the project not ‘substantially started’ essentially terminated a government certificate that was necessary for construction to proceed.
Kathryn Teneese, the chair of the Ktunaxa Nation Council, said she remains concerned about the spiritual values of the area and the government’s environmental assessment process.
“While our concerns about the proposed ski resort’s profound negative impacts to Ktunaxa spirituality, culture and identity remain paramount for us,” said Teneese, “the court’s decision should concern all British Columbians given it’s potentially negative consequences for the environmental assessment process.”
In her reasons for judgement, Justice Forth determined that some of the mitigating circumstances, or project delays were the fault of the province, notably issues around the creation of a municipality, a three year process for an environmental assessment review, delays over the approval of a Master Development Plan and the removal of a bridge that cut off access to a construction site.
“These delays become crucial when there is a regulated timeline for the substantial start of a project,” wrote Justice Forth. “If the project cannot be started because of these types of delays, then the delays should become far more relevant in considering a substantial start.”
Forth ruled that Polak’s decision over the ‘substantially started’ issue be remitted, or sent back, to the Ministry of Environment.
Teneese said that the judge’s ruling does not mean the project will go forward.
“We also note that this court decision is not a green light for the project to proceed,” she said. “The court merely asked the current minister to re-consider Minister Polak’s 2015 decision with more attention to ‘mitigating circumstances’.”
Three years ago, Polak determined that Phase One of the project was an appropriate threshold for a substantial start, which identified benchmarks such as lifts and ski areas, resort infrastructure services and development of lodges and chalets.
However, by October 2014, some of the physical work completed only involved the pouring of concrete slabs for a day lodge and a service building, construction of a well and clearing and grading for further project development.
“While it is clear that some construction has been started, I am not convinced that the physical activity undertaken on the various components meets the threshold of a substantially started project,” Polak wrote.
It will now be up to the current Minister of Environment, George Heyman, to consider whether the project had been substantially started by October 2014.
The Ktunaxa Nation is opposed to the construction of the resort, which rests in a environmentally and spiritually sensitive area known as Qat’muk, and is believed to be home to the Grizzly Bear Sprit.
