A First Nation embroiled in a fight against salmon farms in the Broughton Archipelago is taking the battle to a new level by filing a claim of Aboriginal title in B.C. Supreme Court.

The Dzawada’enuxw First Nation, whose main reserve is Kingcome Inlet, is claiming that tenures granted by the province to several companies are not authorized because they are in Aboriginal title areas.

The claim affects 10 fish farms, most of which have licences that expire next month, meaning the province must make a decision whether to renew those licences in the face of the title claim and sustained protests by First Nations. The claims also affect some forest tenures, but they are largely inactive.

The title claim is unique as it includes water as well as land, said lawyer Jack Woodward, who is representing the First Nation.

“This would be the first case to extend the claim of Aboriginal title to the shoreline of the ocean,” Woodward told The Narwhal.

“It may seem surprising that a land claim would extend into water areas, but it is not a surprising concept under the legal system because even the provincial government extends its Land Act into water areas. These very licences are issued pursuant to the Land Act,” he said.

The case could take years to get through the court system, but it will inevitably put pressure on the provincial government and Woodward said other interim measures are likely if the licences are renewed.

“It is likely that there will be some sort of preliminary procedure, whether an injunction or a judicial review of the procedure. It will depend how the decision is made. It is likely the case will form a platform or foundation for pre-trial proceedings,” he said.

The decision to claim Aboriginal title was made after community meetings, followed by a unanimous vote, community member Lindsey Willie told The Narwhal.

There is mounting evidence that the presence of fish farms adversely affects shrinking wild salmon runs, and a collective of First Nations has actively protested against Marine Harvest and Cermaq since last year.

“This is the biggest move we can make. The land was taken from us and it has always been our goal to own our land. Once we do own it, through the title claim, we will be able to have the fish farms removed,” said Willie, who is optimistic the court will rule in favour of the First Nation.

One reason for that optimism is that Woodward is leading the case, Willie said.

Woodward represented B.C.’s Tsilhqot’in Nation in a historic case that resulted in a Supreme Court of Canada ruling in 2014 that the Tsilhqot’in hold title to about 1,900 square kilometres of their traditional territory.

The ruling, which ended a 25-year legal fight, was the first time an Aboriginal group in Canada had won a title claim, and has resulted in a dramatic shift in the legal landscape.

The Haida, Cowichan Tribes and Nuchatlaht First Nation are among title cases that are now wending their way through the courts.

When Aboriginal title is recognized, the province loses jurisdiction and the Tsilhqot’in decision made it clear that First Nations consent is then required for resource development.

Forests, Lands and Natural Resource Operations Minister Doug Donaldson was not available for comment Monday, but a ministry spokeswoman said the province is engaged in government-to-government conversations with five bands and six First Nations in the Broughton Archipelago.

“It is too early in the process to presuppose the outcomes of those discussions,” she said.

Donaldson previously offered hope to those protesting against salmon farms in areas such as the Broughton Archipelago, where young wild salmon swim past the pens, by saying the government is “very interested “ in moving salmon farms to land-based operations — something salmon farmers claim is not practical.

In 2013 the ‘Namgis First Nation started B.C.’s first land-based Atlantic salmon farm in Port McNeill. The operation, called Kuterra, began selling land-farmed salmon to market in 2014. Since then, however, little other investment in land-based aquaculture in B.C. has taken place despite rapid growth in the U.S.

Members of the the Dzawada’enuxw First Nation believe change needs to come quickly if wild salmon are to be saved.

Hereditary Chief Joe Willie said the fish farming industry infringes on the First Nation’s way of life by breaking the natural circle of life that has sustained the community since time immemorial.

“This cannot continue,” he said.

Dzawada’enuxw Chief Willie Moon emphasized that the ancestral lands have never been ceded and the Dzawada’enuxw people have lived in the territory since time immemorial.

“Our identity comes from these lands and waters,” he said.

And Woodward is as optimistic as the band members that, eventually, the title case will be won.

“There’s no doubt that we will win, but it does take time,” he said.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The steady stream of trucks filled with contaminated waste that have been making their way to the small community of Shawnigan Lake on Vancouver Island for the last 10 months will come to a stop today after the B.C. Supreme Court ruled the province erred in granting a waste disposal permit for 460 Stebbings Road.   The B.C. Supreme Court ruled “a contaminated soil treatment facility is not a permitted use on the property” after finding the provincial Ministry of Environment granted a waste discharge permit to South Island Aggregates in August 2013 that violated local bylaws.   The court ordered an immediate injunction preventing South Island Aggregates from dumping more contaminated material.   “I’m just ecstatic,” Sonia Furstenau, elected representative of Shawnigan Lake with the Cowichan Valley Regional District (CVRD), told DeSmog Canada about the ruling.   “I’m overjoyed.”   In 2015 the CVRD filed a lawsuit against the permit, which granted the company permission to dump 5 million tonnes of contaminated soil in a local gravel quarry.

According to the permit, the waste could contain furans, dioxins, chlorinated hydrocarbons, glycols, polycyclic aromatic hydrocarbons, benzene, toluene, xylene and other materials known to cause cancer, brain damage and birth defects in humans.

The quarry is located approximately five kilometres uphill from Shawnigan Lake, a source of drinking water for 7,500 year-round residents. The population swells to 12,000 in the summer months. 

Residents of Shawnigan Lake aggressively opposed the project since it was first proposed in 2012, citing concerns over the potential contamination of drinking water.   “From the very beginning nobody thought the provincial government would approve this. It just seemed too crazy,” Fursteanau, a resident of Shawnigan Lake and organizer with the Save Shawnigan Water campaign, said.   She added today’s decision comes just over one year after the community lost its case with the B.C. Environmental Appeal Board (EAB).   “It’s ironic,” Furstenau mused, “I studied medieval history and it’s a year and a day today since the EAB decision and that was the period of punishment in the middle ages — you’d be exiled for a year and a day.”   “So our exile in Shawnigan is over.”

Like what you're reading? Sign up for our email newsletter!

The community of Shawnigan Lake is awaiting an additional decision from the B.C. Court of Appeal that seeks to overturn the Environmental Appeal Board ruling. In that case the CVRD and the Shawnigan Residents Association are arguing the permit approval process was corrupted due to a leaked profit sharing agreement between the company and the engineering firm hired to provide geotechnical analysis of the project.   “I’m hoping for another successful outcome,” Furstenau said.   “We are on the side of light and justice, on the side of truth and on the side of protecting drinking water, which all governments should protect.”

In an e-mailed statement the B.C. Ministry of Environment said "staff will need to review the decision to fully understand its impacts before we can provide further comment."*   Shawnigan Lake resident Georgia Collins said the Supreme Court’s decision has her “over the moon.”   “It’s literally the best day of my life,” she said over the phone. “I don’t know what to do with my self. I just went outside and screamed in the happiest way possible.”   Collins said the ruling is important because it upholds local bylaws and zoning restrictions over and above permits granted by provincial ministries.   “I have very little faith in the provincial government now,” Collins said. “There was such a failure of process”   Collins added she would still like to see the Ministry of Environment’s permit overturned by the B.C Court of Appeal.   “I think it needs to be shown that the process was faulty, that there was fraud and that the community was right in what it was fighting for.”   She added: “I know all kinds of appeals can be made, but right now I’m going to celebrate this.”   Andrew Weaver, leader of the B.C. Green Party and MLA for Oak Bay-Gordon Head, congratulated the community, saying the court decision “is a vindication of their concerns.”   "I want to recognize the hard work of Shawnigan Lake residents in coming together as a community and standing up for their rights in the face of government inaction.”

"I look forward to reviewing the ruling and working with local politicians and residents to ensure that we continue to move this issue forward in a way that protects the rights of the Shawnigan Lake community," Weaver said in a statement.   The B.C. Supreme Court did not order the company to remove contaminated soil already deposited at the site but indicated such matters will be handled by the Ministry of Environment and the Environmental Appeal Board.

*Updated to include comment from the Ministry of Environment.

Image: Protesters block trucks loaded with contaminated soil. Photo by Laura Colpitts.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The provincial government did not fulfill its legal obligation to consult with First Nations on the Enbridge Northern Gateway pipeline, the B.C. Supreme Court ruled Wednesday.

The case, brought forward by the Gitga’at and other coastal First Nations, argued the province erred when it handed over decision-making authority for the project to the federal government under a provincial-federal Joint Review Process managed by the federal National Energy Board.

B.C. granted Ottawa authority over the project’s environmental review in a 2010 equivalency agreement. That agreement, however, did not release the province from the legal duty to consult First Nations, the B.C. Supreme Court found.

“It’s a very significant ruling,” Elin Sigurdson, lawyer with JFK Law, said. “The coastal First Nations and Gita’at were very successful in the application to quash the equivalency agreement which means the province now has to consult with First Nations that will be affected by matters in the provincial jurisdiction and has to conduct a new environmental assessment for the project.”

In December 2013 a Joint Review Panel recommended the federal government approve the pipeline, slated to carry 525,000 barrels of oilsands crude to the B.C coast each day, subject to 209 conditions, one of which was “consultation with aboriginal communities.” Federal cabinet approved the pipeline in June 2014.

Greg Rickford, former Natural Resources Minister under the Harper government, suggested at the time that the duty to consult with First Nations resided with Enbridge.

"The proponent clearly has more work to do in order to fulfil the public commitment it has made to engage with aboriginal groups and local communities along the route," Rickford said in a government press release.

“The duty to consult as a constitutional obligation does not lie with Enbridge,” Sigurdson said. “The Crown always has to ensure that the duty to consult was discharged in a meaningful way.”

Heiltsuk Chief Marilyn Slett said the ruling is a “great victory.”

“We’re feeling really good about it,” she said. “We’re just so committed to our community and protecting our coast.”

“It’s affirming to know that there’s a responsibility to come back and talk to the people these kinds of projects will affect.”

Slett said the government acknowledged the need to address First Nations concerns in Premier Christy Clark’s five conditions for oil pipelines.

“In terms of the government saying they are doing what they are supposed to be doing, well today shows [Christy Clark] has to be held accountable, to consult with us.”

“We stand our ground, around protecting who we are as people and our communities. This strengthens all of us,” she said. “We’re in it together.”

Susan Smitten, executive director of RAVEN Trust, said the ruling will mean major delays for a project that is already mired in uncertainty.

“All the coastal nations that will be affected by components within B.C. jurisdiction will have to be consulted, which will take time,” she said. “An environmental assessment would also take time.”

She added her organization is delighted with today’s win. “This is what we live for: to see Indigenous Peoples successfully see their issues through the courts.”

In September the B.C. Environmental Appeal Board ruled B.C. handed out scientifically flawed long-term water withdrawal permits to Nexen, a company with fracking operations in northern B.C.

The board found B.C. failed to properly consult with the Fort Nelson First Nation when issuing the water licence and ordered its cancellation, effectively immediately. The board also ruled B.C. failed to operate in good faith with the Fort Nelson First Nation and that the province’s consultation process was “seriously flawed.”

According to Sigurdson, the province may need to change its approach to consultation.

The province should have ensured the equivalency agreement met the needs of First Nations that stood to be affected by the Northern Gateway pipeline, she said.

“They were supposed to have consulted and it was not honourable for them to not do that.”

Consultation “has to mean something,” Sigurdson said. “It’s an obligation grounded in a solemn constitutional promise to preserve and protect the aboriginal rights of First Nations in Canada.”

“It can’t just be window dressing,” she said.

“It has to be real and meaningful dialogue. You can’t just have pretend consultation stand in the place of performing the actual obligation of giving information, hearing concerns and responding to them — actually engaging the concerns. “

“If you’re not doing that, you’re not doing the consultation required.”

Image: Mandy Nahanee, member of the Squamish First Nation at a rally, June 2014. Photo: Zack Embree.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The B.C. Supreme Court awarded $50,000 in damages to climate scientist Andrew Weaver in a ruling Friday that confirms articles published by the National Post defamed his character.

The ruling names Terence Corcoran, editor of the Financial Post, Peter Foster, a columnist at the National Post, Kevin Libin, a journalist that contributes to the Financial Post and National Post publisher Gordon Fisher.

Four articles published in 2009 and 2010 refer to Weaver, now MLA for Canada’s Green Party, as an “alarmist” who disseminates “agit-prop” and a “sensationalist” that “cherry-picked” data as “Canada’s warmest spinner-in-chief.” Weaver was previously a lead author on a number of the UN's Intergovernmental Panel on Climate Change (IPCC) assessment reports.

In the damages section of the ruling (attached below), Madam Justice Emily Burke notes, “the defamation in this case was serious. It offended Dr. Weaver’s character and the defendants refused to publish a retraction.”

Justice Burke concluded the defendants “have been careless or indifferent to the accuracy of the facts,” adding, “they were more interested in espousing a particular view than assessing the accuracy of the facts."

Weaver told DeSmog Canada he’s “thrilled” with the ruling.

"I am absolutely thrilled with today's B.C. Supreme Court judgment in my libel case against the National Post, Terence Corcoran, Peter Foster, Kevin Libin and Gordon Fisher.”

Weaver said he initiated the lawsuit in 2010 when the National Post refused to retract the offending articles “that attributed to me statements I never made, accused me of things I never did, and attacked me for views I never held."

“I felt I had to take this matter to court to clear my name and correct the public record. This judgment does precisely that.”

Dr. Peter Gleick, president of the Pacific Institute and member of the U.S. National Academy of Sciences, said the ruling “is a victory for climate scientists everywhere.”

There is “an extremely long history of efforts by climate deniers and contrarians to attack not just climate science, but climate scientists: to smear their scientific reputations, to distort their statements, and to make false and defamatory accusations,” Gleick told DeSmog Canada.

Gleick said defamation “has been a standard tactic for years, especially as the science of climate change has continued to strengthen and solidify.”

The attack on Weaver’s credibility is unfortunately only one of many examples, he said.

“While I'm sure the ruling will not stop the continued assault on climate science and scientists, it should certainly put people on notice that there is a responsibility to avoid such irresponsible attacks and a real cost for failing to do so. I hope this ruling has that effect."

Weaver said he is looking forward to the defendants “publishing a complete retraction and removing the offending articles from electronic databases.”

The four articles in question, as listed in the court ruling, can be seen below. Three of these articles still appear on the National Post’s website at the time of publication.

As part of his suit, Weaver also argued the National Post should take responsibility for the articles republished on third-party sites.

“I further look forward to them withdrawing consent given to third parties to re-publish the articles and to require them to cease re-publication,” Weaver said.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Snow is flying in the Jumbo Valley, covering both the rapidly constructed foundations of a ski lift and day lodge and the campsite where, throughout the summer, opponents have monitored activities at the site of a proposed all-season ski resort centred around four glaciers in the heart of the Kootenays.

For now, it’s a waiting game — no surprise to the many players on both sides of the controversial proposal who have been involved throughout the 24-year saga.

Glacier Resorts Ltd. is hoping the foundations, built in October, will prove to the provincial Environmental Assessment Office that significant progress has been made on construction of the billion-dollar proposed Jumbo Glacier Resort.

[view:in_this_series=block_1]

In 2004 the company was granted an environmental assessment certificate with 195 conditions. The certificate was renewed in 2009 and, under legislation, cannot be renewed again. For the certificate to become permanent, Glacier Resorts must show that the project was “substantially started” by Oct. 12.

Three days before that deadline, the Environmental Assessment Office wrote to Glacier Resorts saying the company was not in compliance with three pre-construction conditions, primarily relating to water quality and fish habitat monitoring. However, the warning about non-compliance does not have any direct bearing on the decision about whether the project has made significant progress, said an Environment Ministry spokesman.

The term “substantially started” is not defined in legislation. The Environmental Assessment Office will make a recommendation to Environment Minister Mary Polak, who will make the final decision.

“There is no set timeframe in which the minister must make the determination about whether a project was substantially started by the deadline,” said the ministry spokesman.

Until a decision is made, it is not only the weather that has put a stop to construction. The company has been warned not to continue work until a decision is made, although restoration work on the non-compliance problems is allowed.

Mountain Guide Critical of Construction 'Rush Job'

A 10-centimetre snowfall in the Jumbo Valley means the “concrete slab” foundations are “out of sight, but not out of mind,” said retired mountain guide Arnor Larson, a tireless opponent of the resort proposal.

Larson has submitted a document and photos to the Environmental Assessment Office raising questions about the “unusual” quality of the foundation work on the day lodge and ski lift.

“Rush jobs often mean cutting corners, but it was still a surprise that, throughout the area covered by the forms, the ground was never properly leveled and compacted, nor was the necessary topping layer of fine aggregate material ever installed, leveled or compacted,” he wrote.

“Believing in foundations that have no foundation is like something out of Alice In Wonderland.”

Foundation for Day Lodge Adjacent to 'Avalanche Meadow'

Larson, armed with pages of photos and documentation, also has serious concerns with the location of the day lodge.

“As a professional mountain climbing guide since 1970, I stood there and had a thought that went like this — in the winter, when avalanche conditions are ripe, I would find the risk too high to set up my tent here for even one single night. Yet they are going to erect a permanent building here,” he said.

“Who the heck signed the paper saying this was a safe place to build?”

Larson pointed out in his submission that the site of the day lodge has changed from the original plans and the lodge doors at the new site would open on to “the aptly named Avalanche Meadow.” It is an area where, in 2009, a massive avalanche tore down a ski run.

The resort’s Master Plan calls for avalanche control measures, such as helicopter bombing potential avalanche sites, but critics such as renowned Canadian mountaineer and photographer Pat Morrow, who lives in the East Kootenays, does not believe the area can be made safe.

“As you get further and further into the proposed townsite, you are getting further and further into avalanche territory,” he said.

“No other resorts have base areas that are threatened as much as this.”

NDP Leader John Horgan Says Day Lodge in Class 4 Avalanche Zone

Growing concerns about building a day lodge adjacent to an avalanche path — even though proponent Oberto Oberti has said the buildings will be just outside the high-risk area — were taken up this week in Question Period by NDP leader John Horgan.

Jumbo Glacier Resort specifically committed to building residential and commercial structures outside avalanche zones, Horgan said.

“Yet the Jumbo Glacier Resort has put the only foundation that they’ve been able to pour to this point in time, their day lodge, right in a Class 4 avalanche zone,” he said.

“For the minister’s edification, a Class 4 avalanche zone is really, really bad. In fact, it says ‘a Class 4 could destroy a railway car, large truck, several buildings and forests up to four hectares.’ It’s a big deal.”

However Polak, who recently visited the area and met with the Ktunaxa First Nation, rejected calls from Horgan for her to immediately withdraw the permit.

“It is very important that we allow the process to unfold, that we allow First Nations to respond appropriately, providing us with that information,” she said.

Robyn Duncan of Wildsight, a non-profit group that has led much of the opposition to the proposal, said Wildsight has been working with Ecojustice to make last-minute submissions to the Environmental Assessment Office and, if the Jumbo Resort project gets the go-ahead or, if there is an attempt to again extend the certificate, a legal challenge might be considered.

The proposal is already being challenged by the Ktuxana First Nation, which is appealing a B.C Supreme Court decision that the consultation was reasonable and the resort would not substantially interfere with Ktunaxa spiritual beliefs and practices. The area in which the resort is planned is known to the Ktunaxa as Qat’muk, the place where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world.

The West Kootenay EcoSociety is also challenging the incorporation of the Jumbo Glacier Mountain Resort Municipality, a municipality with no residents which is being supported with taxpayer dollars.

Others who have taken part in the annual protest and monitoring camps are watching carefully and are ready to spring into action again if it proves necessary.

“I have been working to keep Jumbo Wild for over 15 years,” said KL Kivi, who spent much of her summer at the monitoring camp.

“This is the largest unroaded wilderness in southern B.C. and our lives are inextricably linked to the health of this place. It would fracture the spine of an incredibly important ecological region,” she said.

Tommaso Oberti, vice president of Pheidias Project Management, who has acted as spokesman for previous stories, did not respond to questions.

However, a letter written by Oberto Oberti, on behalf of Glacier Resorts, to Jumbo Municipality Mayor Gregory Deck, underlines his confidence that the project will go ahead.

“In the most unlikely event that physical and legal disruptions do not permit the start of construction, the government will have an obligation to extend or remove the deadline, as in any construction case of force majeure,” he wrote in February.

“I am certain that, in this case, Glacier will seek legal advice and legal routes to ensure that its rights are not compromised.”

Photo: Lucas Jmief, Lucasimagephoto.ca

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Grizzly bears in the Central Purcell Mountains are more vulnerable than shown in 15-year-old research being used by proponents of Jumbo Glacier Resort and, if the resort is built, it could threaten grizzly populations through southern B.C and into the U.S, says one of Canada’s leading grizzly bear experts.

Michael Proctor, who has studied grizzly bears in the Purcell and Selkirk mountain ranges in southeastern B.C. for almost 20 years and whose work is regularly published in scientific journals, recently completed two ecological analyses of the Purcell grizzly population and found, based on data-driven population surveys, that bear populations are about 50 per cent smaller than previous estimates.

[view:in_this_series=block_1]

In 1999, government scientists estimated the area to be at 93 per cent of carrying capacity for grizzlies, but Proctor’s research, completed more than a decade later, found grizzly capacity to be at 54 per cent. The capacity is the population an environment can sustain.

Human Encroachment Likely Cause of Drop in Grizzly Population

Using DNA analysis from hair snagging, Proctor found the Purcell grizzly populations are depressed, bringing them “close to or below the threatened population threshold.” The reason for the lower than expected numbers is most probably more roads into the backcountry and human-caused mortality associated with the activity that roads bring.

Work needs to be done on helping the population recover before efforts to mitigate the negative effects of the proposed resort come into play, he said,

“To improve the status of the Purcell grizzly it will likely be necessary to improve the balance of human use and wildlife habitat needs. The Jumbo Glacier Resort would challenge our ability to accomplish that goal,” Proctor said in a 2010 letter to the provincial government.

Purcell/Selkirk Grizzlies Act as Anchor Population

An even more important issue, Proctor said in an interview, is that the proposed resort will likely fragment the approximately 600-strong Purcell/Selkirk grizzly population and compromise its ability to act as a core anchor for beleaguered and already-fragmented smaller units to the south. Keeping that population intact is probably essential to maintaining international grizzly bear populations extending south into the U.S.

“Those small, fragmented populations just to the south are too small to survive long-term without the larger Purcell/Selkirk regional core population to act as a long-term source of immigrants,” Proctor said.

It is an argument that has been emphasized by Wildsight, a non-profit fighting approval of the proposed resort.

“This is the last stop. There’s small bits of populations to the south and in the U.S and, if we cut them off they are hooped,” said Wildsight spokesperson Robyn Duncan.

Although Glacier Resorts spokespeople say there are few grizzlies in the area that would be used for year-round glacier skiing, there are numerous anecdotes about resort proponents ignoring grizzlies that appear almost in front of them.

Bob Campsall, a long-time Jumbo Creek Conservation Society board member, recalls one of the first meetings about the planned resort.

“I asked about grizzly bears and they said they had studied the grizzly bear population and there were not enough to be concerned about. I had hiked up there the previous weekend and saw four grizzly bears,” he said.

Most Up-to-Date Grizzly Research Not Considered by B.C. Government

Proctor said that, as Jumbo is in the central spine of the Purcell Range, it is in the area where the bears are generally going to travel.

“Ski areas are not generally bad for grizzly bears; it’s the location of this one,” he said.

However, Proctor’s latest research appears to have been ignored by the provincial government. The Environmental Assessment Office is currently considering whether the environmental assessment certificate, first granted in 2004 and renewed in 2009, should be made permanent.

“They haven’t incorporated the new information I have given them,” Proctor said.

“They said the research was too late.”

That is a disappointment, according to Proctor, who has a reputation as an independent research scientist, whose only agenda is science.

“It is a shame not to use the latest science,” he said.

Gerry Wilkie, a director of the Regional District of East Kootenay, is angry that Proctor’s research is not being taken into account and believes it illustrates how poorly the Jumbo decision is being handled by the government.

“It’s a debacle,” he said, describing the project as a white elephant.

“The fact that Mike Proctor’s work on population dynamics and fragmentation of habitat of the southern interior grizzly was disregarded is of critical importance.”

The Environmental Assessment Office determined that the 1999 report, conducted for Glacier Resorts by Axys Environmental Consulting (PDF), satisfied the requirement for a pre-construction inventory of grizzly bears in the study area, said an Environment Ministry spokesman.

The project is in compliance with five conditions related to grizzly bears, but future work is required, the spokesman said.

 “Jumbo Glacier Resorts is currently developing plans for the next steps in monitoring for potential impacts of the project on the grizzly bear population.”

Proctor is not the only one to conclude the resort would be bad news for grizzlies

Alton Harestad, former co-chair of the provincial Grizzly Bear Scientific Advisory Committee, concluded the development would adversely affect the grizzly population in the South Purcells.

“The size and nature of the development will result, eventually, in the loss of bears locally and will diminish the viability of the regional population of grizzly bears,” Harestad wrote in a report.

“There are no examples in North America where grizzly bears have coexisted successfully with large human development over the long term.”

The Jumbo Glacier Resort Master Plan, approved by the province, relies heavily on mitigation efforts, ranging from Bear Smart programs to establishing partnerships with government and local forest tenure holders to improve grizzly habitat in and around the almost 6,000 hectares of controlled recreation area – Crown land that the company will lease from the province.

Ktunaxa Spirituality Not Up For Grabs

However, members of the Ktunaxa Nation, like other critics, say categorically that mitigation is not possible.

The Ktunaxa, who are appealing a B.C. Supreme Court decision turning down an application for a judicial review of the province’s approval of the resort, know the area as Qat’muk, the place where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world.

The heart of the nation’s spirituality is not up for grabs, says Kathryn Teneese, chair of the Ktunaxa Nation Council.

It is easy to understand why the Jumbo Valley is so special in First Nations culture, Duncan said.

“It’s where grizzly bear science and spirituality come together. It’s not a coincidence that the Ktunaxa knew from living on the land that this is a core area — that this is an area we don’t touch,” she said.

Photo: Heather & Mike via Flickr

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

When Pat Morrow looks around at the mountains, towering on either side of the Jumbo Valley, his concern is palpable.

Avalanche paths are clearly visible, both beside Jumbo Creek Road and on slopes surrounding the meadows and valley where Glacier Resorts Ltd. wants to build a 6,000-bed all-season ski resort.

“Looking down the valley, we are seeing how vulnerable it is to massive avalanche damage. There are three or four fresh ones. The avalanche paths are just slowly eating their way across the slope as the years go along,” Morrow said.

[view:in_this_series=block_1]

Few people who are familiar with Morrow’s accomplishments are going to argue with his expertise.

Morrow, who lives in the East Kootenay community of Wilmer, is a mountain climber, photographer and filmmaker and was the first person in the world to climb the highest peaks of all seven continents. In 1982 he was a member of the first Canadian team to climb Mount Everest and in 1987 he was awarded the Order of Canada for his international mountaineering exploits.

“I have been in hazardous terrain all my adult life — sizing it up — and in there I felt really exposed,” said Morrow, as his truck rattled over the rough road, heading home after a day hiking the Jumbo Glacier Resort area.

Morrow is a director of the Jumbo Creek Conservation Society and supporter of Wildsight, one of the non-profit groups fighting against the Jumbo proposal. On a sunny day in September, as he again looked at the site, his concerns grew.

Morrow does not believe there are any other ski resorts with such high risks at the base site, as well as along the access road and on the glacier ski runs.

“Where are they going to park the cars,” he asked.

“You’re not going to park them in the middle of an avalanche zone.”

An illustration of the power of avalanches — which sweep down one side of the mountain, across the road and swoosh up the opposite side — came this year. A bevy of provincial government cabinet ministers were scheduled to visit the area in June, but had to take a helicopter tour of the site, instead of driving, as the road was still blocked from spring avalanche debris.

The ministers included Energy and Mines Minister Bill Bennett, who has pushed provincial support for Jumbo, and, after the visit, Bennett told a Columbia Valley newspaper that the resort proponent needs improved access. The road, until it reaches the resort boundary, is the responsibility of the province.

In addition to avalanche risks, there are the challenges of bringing supplies along an uneven, unpaved access road and Morrow shakes his head as he tries to estimate the expense of rebuilding the road and helicopter bombing potential avalanche sites.

“It doesn’t make sense,” said Morrow, who grew up in the area and honed his mountain climbing and photography skills in the Purcells.

However, the Jumbo Glacier Resort Master Plan assesses the avalanche hazard at a low to moderate risk, similar to other ski areas in B.C. and Alberta.

An avalanche study, conducted in 1995 for the company by Peter Schaerer of Stetham and Associates, concluded that avalanche risks could be managed with road closures during hazardous times combined with dropping explosive charges from helicopters.

“The avalanche hazard to traffic on the Jumbo Creek Road would be low with the predicted initial traffic volume of 160 vehicles per day and would increase to moderate when volume exceeds about 260 vehicles per day,” says the report.

Avalanche paths sweep down towards the road leading in to Farnham Glacier and the Lake of the Hanging Glacier. Photo: Judith Lavoie.

The reports were compiled by some of Canada’s leading avalanche experts, said Tommaso Oberti, spokesman for the resort proponents.

Rod Gibbons, senior guide with RK Heliski, a company with a 44-year history in the area, said no mountainous area is completely safe from avalanches, but the key is ensuring the level of risk is acceptable.

“Because of the avalanche hazard, there are going to be some extreme costs in keeping that road within Ministry of Transport allowances,” said Gibbons, who has spent 28 winters working in the Purcells.

“It’s going to take a lot of money to make that road fit.”

Helicopters would be required to drop explosives on potential avalanche sites and “a lot of the time, the helicopter will not be able to access those points to do avalanche control,” Gibbons said.

Pilots need good visibility to fly and to assess where to put explosive charges to get the best results, meaning flights are weather dependent.

“There could be multiple days that road will have to be closed,” said Gibbons, who believes he has spent more time in the Jumbo-area mountains than anyone else.

“I’m out there every day,” he said.

RK uses explosives on potential avalanche areas, but last year a German client was killed by an avalanche in the Jumbo area.

Mary Clayton of Avalanche Canada, formerly the Canadian Avalanche Centre, said avalanche terrain is found throughout B.C. and there is nothing unusual about the Jumbo area.

However, of all avalanche fatalities in Canada, 80 per cent occur in B.C. and the majority of those are in the Columbia Region, she said.

Glacier Resorts’ environmental assessment certificate, first issued in 2004, expired October 12 unless proponents can prove there has been substantial progress.

Main image: Mountaineer and photographer Pat Morrow studies the slopes for avalanche paths. Credit: Judith Lavoie.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The rough track at the foot of West Farnham Glacier, carved by a Glacier Resorts bulldozer in 2008, comes to an abrupt end as the already rough terrain becomes impassable.

Huge boulders block the path, where there is an early-fall dusting of snow and, ahead, the cliffs are festooned with precariously hanging icicles.

“We call it the road to nowhere,” said professional mountain climbing guide Arnor Larson, who, since 1970, has taken visitors into the remote Farnham area of the Purcell Range — 60 kilometres from Invermere along a lumpy, slippery one-track road.

[view:in_this_series=block_1]

Stretching above the track is the money card — blindingly bright snow, broken by icy blue patches, where the prospect of all-season glacier skiing has fuelled a 24-year debate.

Glacier Resorts Ltd. plans to build a billion-dollar ski resort, with hotels, lodges, condominiums and shops, in the adjacent Jumbo Valley. Lifts and gondolas would take visitors from the village to ski on Farnham, Jumbo and Commander Glaciers.

But the most pressing question is how long the glaciers will be around.

While the Jumbo Glacier Resort Master Plan predicts the glaciers will survive or even grow as climate change will mean additional snow at high altitudes, climate scientists say glaciers in the Purcell Mountains will have disappeared by the turn of the century.

Larson, who has had a front-row seat to the glacier melt for more than four decades, points to scraped rocks below the glacier toe, showing how Farnham has receded in the time he has been guiding. Then he glances up at the summer snow and points to semi-concealed crevasses.

Professional mountain climbing guide Arnor Larson. Photo: Pat Morrow.

“I wouldn’t be too keen as a guide to take anyone there in the summer for skiing,” he said.

Larson, who has collected old photos of the glaciers, compares a 1913 photo of Commander Glacier to a 2008 photo, showing massive ice reduction. Over recent years, the process has sped up and Commander has shrunk considerably further since 2008, he said.

Commander Glacier in 1913.

Commander Glacier in 2008.

The melting is further accelerated by machines cutting ice roads on the glaciers or “mining” snow from the upper part of the glacier to build ski runs, he said.

Large machinery on Farnham Glacier. Photo: Arnor Larson.

Tommaso Oberti, vice-president of Pheidias Project Management Corp., the company spearheading the resort design, said the Master Plan is based on information from Michael Maxwell, a geophysicist with global consulting firm Golder Associates.

Maxwell, an honorary research associate at the University of British Columbia, said he worked on monitoring the Purcell glaciers in the mid-1990s, but has not done any research in the area since then.

“I guarantee that things have changed since then, but I can’t say how they have changed,” said Maxwell, who is continuing to do some glaciology work in other areas.

The Jumbo Master Plan fact sheet on climate, water and glaciers argues global warming is actually a compelling reason to build the resort because many low-elevation ski resorts in B.C. will not be able to operate if the worst climate predictions come true.

“Even with extreme glacier retraction and a dramatic increase in global temperatures, JGR will be one of the very few locations in North America where skiing will be possible in winter because of its high elevation. In fact, the moraines that are left behind by retreating glaciers result in some of the most skiable terrain possible, when covered with snow in winter,” Oberti wrote in an e-mail.

The glaciers range from a height of 3,400 metres at the top of Jumbo to a low of 2,450 metres at the bottom of Farnham.

That means the high glaciers could actually grow, rather than recede, says the Master Plan.

However, Brian Menounos, professor of earth sciences and Canada Research Chair in glacier change at the University of Northern B.C., said glaciers in the Columbia Basin are unlikely to survive past 2100.

Brian Menounos. Photo: Univeristy of Northern B.C.

It is likely that precipitation will increase from 10 to 15 per cent because of climate change, Menounos said.

“But that doesn’t compensate for the amount of warming that is likely to occur. The modelling that I have seen says most of the ice in the Columbia Basin will not be there by 2100.”

Glaciers in western Canada started retreating in the 1920s, probably because of natural warming, but most scientists agree that, since 1980, they are strongly retreating because of human-caused climate change, Menounos said.

Large glaciers take a long time to respond, so even if everyone immediately stopped using fossil fuels, the glaciers will continue to melt “because of what we have done to them,” he said.

Some icefields in the North Coast Mountains will survive past the turn of the century, although they will be reduced by half, Menounos said.

“But in the southern interior ranges it’s not a good news story.”

Climate scientist Andrew Weaver is Green Party MLA for Oak Bay-Gordon Head and a lead author of the United Nations Intergovernmental Panel on Climate Change scientific assessments, including the report that won the Nobel Peace Prize in 2007.

Weaver scoffs at claims that the Purcell glaciers will survive or grow and described long-term plans for year-round glacier skiing as a “bit of a pipedream.”

A group that knows the glacier well is the Canadian Olympic Development Association (CODA), now known as Winsport, which spent six years training at Farnham, eventually pulling out in 2009.

“It was amazing conditions for summer training and we believe it played a key role in as many as three medals won at the Vancouver Olympics,” said Dale Oviatt, Winsport communications spokesman.

“Essentially we pulled out because of finances as it was an expensive operation to run.”

But while ski conditions on the glaciers may be good for now, the Jumbo Glacier Resort project, which will take 20 years to build, flies in the face of scientific understanding of climatic trends, Weaver said.

“It is expected that by 2100 Jumbo Glacier will be largely non-existent. In fact, just looking at the period between 1985 and 2005, the entire southeastern B.C. glacial region lost, on average, roughly 15 per cent of its mass,” he said.

Weaver cannot understand why the provincial government is supporting the private-sector proposal by funding the Jumbo Glacier Mountain Resort Municipality, which has no residents, and he questions whether the project is attracting investors.

“A prudent investor would ask ‘how long is this glacier going to be around?’ and would ask the scientific community,” he said.

Main Image: Commander Glacier by Pat Morrow.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

This is a guest post by Troy Sebastian, special projects coordinator for Ktunaxa Nation Council.

Amid the succulent smells of turkey and spice this Thanksgiving weekend, another season draws near.

In every municipality in British Columbia, lawn signs are popping up like plywood pumpkin patches. Door knocking has begun in earnest and no baby is safe from obligatory photo ops. Hand shakes and promises — the currency of democracy — reign once more.

Every town in the province is gearing up for municipal elections a month from now, except for one — the Jumbo Glacier Mountain Resort Municipality.

The reason is simple: Jumbo is a town without residents.

Jumbo is heavy on bravado and weak on substance. The project is sold as a 6,000-bed resort at the foot of a receding glacier that promises year-round skiing. Yet it is relying on taxpayer dollars to keep afloat. What Jumbo does have is the limitless support of the province in every request imaginable.

[view:in_this_series=block_1]

During the past five years, the province has:

• Extended the Environmental Assessment Certificate (2009)
• Approved the project (2012)
• Amended the Local Government Act to allow the creation of Jumbo municipality (2012)
• Established Jumbo Glacier Resort Municipality with appointed mayor and council (2013)
• Provided $260,000 in funding. The municipality’s five-year financial plan relies solely on taxpayer dollars, asking for $1 million from the province through to 2018.  

Yet the province has very little to show for its support.

The developer is under significant pressure to demonstrate it has “substantially started” the project. Otherwise its Environmental Assessment Certificate will soon expire. That is why a bridge and a shack are quickly being thrown together in the Jumbo Valley.

Years of government time, money and effort in support of this project have resulted in a taxpayer-funded bridge to nowhere.

When it comes to Jumbo, the red flags are plentiful. For starters, the East Kootenay region is awash in ski resorts that are rarely at full capacity.

The closest municipality, the District of Invermere, has been officially opposed to the project for years.

At the recent Union of British Columbia Municipalities, Invermere Mayor Gerry Taft put forward a motion to oppose provincial funding for towns without residents. It was adopted unanimously.

The Ktunaxa Nation is opposed to the project as the ski resort would be located in a sacred area known as Qat’muk. Jumbo is also critical grizzly bear habitat. The NDP are opposed, as are the Greens. Heck, Hockey Hall of Famer Scott Niedermayer and Olympic Gold medalist Beckie Scott are opposed.  

Olympians, Indians and grizzly bears — oh my!

And yet, the never-ending saga of the Jumbo Glacier resort continues to push the boundaries of expectation, common sense and straight-forward believability.

The province has an opportunity to put this sad cliché where it belongs: in the dustbin of loony B.C. ideas with the likes of Fantasy Gardens, Fast Ferries and the myth of Cascadia.

Should Jumbo Glacier Resorts by found to be in violation of its obligation to substantially start its project by October 12, the province will finally be in line with realities that are impossible to ignore. No one wants it. It does not make sense. It is a costly mess.

However, should the province continue its support for Jumbo, it will embrace a level of absurdity usually reserved for governments of global ridicule. Often, democracies beset with allegations of corruption and graft are known as ‘banana republics.’ It is an unfortunate term that usually refers to countries in the developing world. Bananas do not grow in Jumbo.

The continuing saga of the Jumbo Glacier Resort symbolizes all that is wrong with British Columbia’s politics and economy. Where else but in Jumbo would we find a mayor without residents, a town without homes or a ski hill without investors? Welcome to the Jumbo Republic!

The only people who could truly give thanks for this debacle are the mayor and council of Jumbo who are not encumbered with the weight of democratic accountability. Nor are they required to express their gratitude for the largesse they enjoy at the expense of the citizens of British Columbia.

It is time for Premier Clark to stop the Jumbo Glacier Resort gravy train and bring accountability and sanity to the situation once and for all.

Keep Jumbo wild.

That is something we could all give thanks for.

Photo: Courtesy of Pat Morrow

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The clock is ticking toward the deadline for Glacier Resorts Ltd. to prove substantial progress has been made toward constructing a controversial all-season ski resort in the East Kootenays and the company is making a last-minute push to transform a wilderness valley into an active building site.

Jumbo Glacier Resort was first granted an environmental assessment certificate — with 195 conditions — in 2004. It was renewed in 2009 and, by law, the certificate, which expires October 12, cannot be renewed a second time. For the certificate to become permanent, the company must show B.C.’s Environmental Assessment Office that substantial work has been completed.

[view:in_this_series=block_1]

*Update: On Oct. 9, the province's Environmental Assessment Office wrote a letter to the project's proponents stating that the project has been found to be non-compliant with three pre-construction conditions related to the monitoring of streamflows, fish habitat, water quality and road use.

"Our common practice is to work with companies to first focus on approaches to begin to address non-compliances such as these before determining if any formal enforcement is appropriate," the letter states. "This warning is a first step in the enforcement process, and the Province may choose take further compliance action with regard to existing or future non-compliance."

Robyn Duncan of Wildsight, a non-profit group spearheading opposition to the resort proposal, says the conditions need to be upheld.

“The B.C. government has an opportunity to prove their claims to the people of B.C. that we have a rigorous environmental assessment process in place by upholding these commitments and stopping construction until they have been satisfied,” she said.

“Show British Columbians that environmental protection is a priority of this government.”

Earlier this month, apart from brush-clearing and markers stuck in the ground, there were few signs of construction at the site in the heart of the Purcell Mountains. But this week has seen a flurry of activity and cement foundations have now been poured for a lift and day lodge.

The last-ditch activity has infuriated opponents who are questioning why, after years of inaction, the proponents are now putting on what appears to be a frantic push.

“This is a desperate attempt at the last minute to try and achieve something on the ground and keep their environmental certificate, not to mention save face,” Duncan said.

“After 10 years, all they have been able to accomplish is to pour the foundation for one day lodge and one lift footing.”

An Environment Ministry spokesman said Thursday that Environmental Assessment Office staff will be at the Jumbo site Monday “to document progress for the purpose of the determination on whether the project has been substantially started.”

Several ministries and agencies are coordinating the oversight and staff have been in the Jumbo Valley since last Saturday and will be on site every day this week, he said.

Since construction began in August there have been a dozen site visits and field inspections, according to the ministry.

However, a decision is not likely to be made immediately as the Environmental Assessment Office will ask Glacier Resorts, the Ktuxana Nation Council and Shuswap Indian Band to provide information to help determine whether the project was substantially started by October 12, said the ministry spokesman.

“If Glacier Resorts Inc. decides to work past October 12, they are potentially at risk of constructing without an environmental certificate,” he said.

If it was found the project was not substantially started, any work done after October 12 would violate the Environmental Assessment Act.

Already the last-minute work has run into problems with the uncertain fall weather. Opponents, taking part in a rally near the entrance to the Jumbo property, cheered on Saturday when cement trucks were unable to get up the unpaved road because of mud.

“Mother Nature is working her magic,” said a posting on the Jumbo Wild website.

Tommaso Oberti, vice-president of Pheidias Project Management Corp., the group designing the resort, said between six and 10 inches of rain fell at the resort site the previous night.

“It made the last few kilometres of the access road very muddy and difficult for heavy trucks. The contractors are making improvements to the road,” he wrote in an e-mail.

Three days later, cement trucks were able to drive into the wilderness site, 55 kilometres from Invermere, and construction started.

A concrete foundation at the site of Jumbo Glaicer Resort. Photo: Tommaso Oberti.

The weekend’s botched attempt to bring in cement trucks is an example of the project’s disorganization, Duncan said.

“You’d think they would have checked the road conditions first. This is supposedly a billion-dollar project. It’s indicative of what we have seen over the last 10 years — desperate efforts and runarounds.”

Robyn Duncan of Wildsight at a protest against the Jumbo Glacier Resort last weekend.

Glacier Resorts is also facing two court challenges. The Ktunaxa Nation is appealing a B.C. Supreme Court decision that turned down an application for a judicial review. The case is based on alleged inadequate consultation and the constitutional right to freedom of religion. The Jumbo Valley is considered sacred to the Ktunaxa people as the home of the Grizzly Bear Spirit.

Also, the West Kootenay EcoSociety is challenging the incorporation of Jumbo Glacier Mountain Resort Municipality.

The plan for a 6,000-bed resort, with more than 20 ski lifts, was initially proposed 24 years ago and the Master Plan was approved by the province in 2007. In 2012, the province changed the Local Government Act and created the Jumbo Glacier Mountain Resort Municipality, with an appointed mayor and council, even though the community has no residents and no buildings.

The municipality initially received $260,000 in provincial grants and its five-year plan calls for a further $200,000 a year. The municipality has also received about $50,000 in federal gas tax money.

Critics, including the Union of B.C. Municipalities, have railed against the province funding a municipality with no citizens. In addition to the mayor and council having no accountability to voters, under the municipality’s Letters Patent, council must adhere to the resort’s Master Plan — meaning building permits and approvals are all but automatic.

Oberti said cash also flows from the province to Jumbo opponents, such as $1.4 million to the District of Invermere for improving tourism infrastructure and $1.65 million to the Ktuxana Nation to help with land and resource decisions.

Opponents say funding for an existing municipality and a First Nation are a far cry from funding for a private, for-profit enterprise.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

With a construction deadline looming this Sunday, Jumbo Glacier Resort is also facing two legal challenges — an appeal from the Ktunaxa Nation, emboldened by the ground-breaking Tsilhqot’in decision, and another lesser known challenge from West Kootenay EcoSociety.

The Nelson-based non-profit group is challenging the incorporation of Jumbo Glacier Mountain Resort Municipality.

The municipality, with no residents and no buildings, was created by the provincial government after an amendment to the Local Government Act. The province then appointed a mayor and two councillors who make decisions on planning and zoning for the resort, but, under the Letters Patent, they are bound to follow the provincially approved resort Master Plan.

EcoSociety executive director David Reid said a B.C Supreme Court date is expected before the end of the year. The petition asks the court to quash the incorporation and strike down legislative amendments that allowed creation of the municipality.

“The idea is that a city should have citizens. This is undermining the ability of our region to participate in democracy – otherwise the people of East Kootenay would have input into the planning process,” he said.

Jumbo council is not accountable to voters, so the public is disenfranchised, Reid said.

“It also creates a precedent. If (the court action) fails, it means they could create a municipality anywhere.”

That could mean, if a mine or resource extraction company could not gain local support, the province could get around rules by creating a municipality in the area where no one was living, Reid speculated.

“The opportunity for abuse is enormous.”

Tommaso Oberti, vice president of Pheidias Project Management Corp., the company that came up with the Jumbo vision and design, said the process has been democratic as the Regional District of East Kootenay voted to ask the province to create a resort municipality.

“This is democracy. The regional government (which was Jumbo Glacier Resort’s local government at the time) decided that it was beneficial to the region for the project to be administered locally, as opposed to being administered from Cranbrook,” Oberti said in an e-mailed response to questions.

Image: Brian Turner

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.