Jumbo Glacier Resort ruling a ray of sunshine amid B.C.’s regulatory snowstorm

The recent decision by the Supreme Court of Canada to deny a British Columbia First Nation de facto religious veto power over a ski-resort proposal – the reserve's government claimed a "spirit bear" exists, is part of its religious tradition and wanders in a valley where chairlifts might one day exist – was positive insofar as the court finally circumscribed the heretofore ill-defined and thus endless duty to consult First Nations.

However, the decision is but one bit of common-sense blue sky in an otherwise fog-bound anti-development environment in British Columbia.

The Supreme Court decision concerned Jumbo Glacier resort, a proposed ski village with 23 chairlifts that could ferry skiers around the mountain and in some cases, up to the top of the Jumbo Glacier, near Invermere. The resort was first proposed in 1990 – when the first George Bush was in the White House and the Soviet Union still existed – on the site of an abandoned sawmill. Its continual delay is a case study in how unreasonable environmental activism, civil servants, at least one private special interest and a First Nation combined to thwart a potential major tourist draw.

Some history: The project's first step came in 1990, courtesy of an expression of interest with the then-named B.C. Ministry of Lands and Parks. The Social Credit government of the day encouraged the proponents to proceed, as did later NDP premiers Mike Harcourt and Glen Clark.

The project – in a province where people like to ski – should have proceeded rapidly, albeit with the usual regulatory, environmental and stakeholder processes to be crunched through. In 1993, 18 of 22 mostly local stakeholders voted in favour of the proposed land-use designation, a required step and part of a new environmental-review process. Two years later, the B.C. government formally announced it approved the resort's land-use designation.

From there, it was all uphill. Project proponents faced internal opposition from the provincial Environment Ministry as early as 1993, but which only came to light after a 1996 Freedom of Information request filed by the development company, Glacier Resorts.

The results were telling: One 1993 memo from an Environment Ministry public servant, Guy Woods, offered advice to other public servants.

They were concerned that Environment staff had not done enough to derail the project: "My suggestion," Mr. Woods wrote, "is that we use the proponents' funds and work as effectively as we can to ensure that the development does not proceed." Tellingly, Mr. Woods admitted that he and the others in Environment often had "a great deal of difficulty producing documents and proof of problems." He anyway recommended that everyone should "look at this as an opportunity to collect the ammo, to stop the development!"

It wasn't just B.C. bureaucrats who threw up barriers. In addition to continuing local blockades, in 2005, a heli-ski company which flies skiers to the glacier atop Jumbo requested a judicial review of the environmental approval process, hoping to stop the resort. That company lost in the B.C. Court of Appeal, but not before costing Glacier Resorts money and time.

Next up was the 2009 claim from the Ktunaxa Nation, not previously alleged, that claimed a ski resort – this on the site of an old lumber mill – would drive away a claimed spirit bear. That was the assertion the Supreme Court just blunted in dismissing the appeal. The court labelled the attempt to prevent a specific development on public land owing to religious belief as "novel."

(Of note, another First Nation, the Shuswap Indian Band, backed the resort and pointed out it was in their traditional territory, not that of the Ktunaxa.)

After all the environmental hoops, regulatory delays, protests and (non-Ktunaxa) lawsuits, the resort was finally approved for a go-ahead in 2013 and was due to be completed by 2015.

But it was only in late August, 2015, after the last bit of necessary local zoning and construction permits were issued, that concrete foundations were poured for the day lodge, a service building and a chairlift.

Six weeks and one snowstorm later, the environmental certificate of approval lapsed and was not extended given that the Environment Ministry determined that the resort lacked evidence of "substantial construction." The minister responsible at the time, Mary Polak, said the resort would have to "start from scratch."

It is now 27 years after a group of investors first went down this ski-development road. The Supreme Court of Canada decision is sensible and welcome. It might not be enough to remove the justifiable perception that special interests, the province's Environment Ministry and some First Nations, activists and politicians in British Columbia are reflexively anti-investment.

Mark Milke, Globe and Mail, November 22, 2017, B4