A ground-breaking Supreme Court of Canada decision on Charter protection of religious beliefs that depend on sacred areas is likely to reverberate through future legal cases and will test Canada’s support of the UN Declaration on the Rights of Indigenous Peoples.

The Ktunaxa Nation appealed a 2012 decision by the B.C. government to approve a plan by Glacier Resorts Ltd. to build Jumbo Glacier Resort, a 6,250-bed ski resort, on Crown land in the Purcell Mountains, about 55 kilometres west of Invermere.

The land, known as Qat’muk to the Ktunaxa, Nation, is believed to be the home of the Grizzly Bear Spirit, the Ktunaxa spiritual source of guidance, strength and protection, and has been at the heart of a 26-year fight to stop the proposed development.

The Ktunaxa, who say they have lived in the area for more than 10,000 years, argued that permanent structures would drive the Grizzly Bear Spirit from Qat’muk, making it impossible for them to continue their spiritual practices

But the court agreed with lower court rulings and said that, although the Ktunaxa have a right to hold those beliefs, the Charter does not extend to protecting sacred sites and building the resort on land considered sacred does not breach religious rights.

“The Charter protects the freedom to worship, but does not protect the spiritual focal point of worship,” says the ruling.

Ruling Says Development May Proceed Without Indigenous Consent

The judgment, which is likely to be used as a legal precedent, also says the duty to consult and, if appropriate, accommodate aboriginal interests, does not give aboriginal groups a veto over developments.

When land claims are unproven, there is a right to a process, but not to a particular outcome, it says.

“Where adequate consultation has occurred, a development may proceed without the consent of an indigenous group.”

Supreme Court’s Jumbo Ski Resort Ruling Offside Of Canada’s International Commitment to #Indigenous Peoples https://t.co/JExREeyR5u #cdnpoli pic.twitter.com/RBOyWEYjUr

— DeSmog Canada (@DeSmogCanada) November 3, 2017

Ktunaxa Nation lawyer Peter Grant said the ruling that freedom of religion does not include religious sites is troubling.

 “As a Catholic, that would be like protecting the right to go to church, but it would not protect the right to the eucharist,” he said.

The decision by the nine judges was unanimous, but Justice Michael Moldaver and Justice Suzanne Cote took a different view of spiritual protection.

Moldaver wrote that the object of the spiritual practices — in this case Qu’atmuk — must be protected and, without that, indigenous religious freedoms involving land are at risk.

“My colleagues’ approach amounts to protecting empty gestures and hollow rituals, rather than guarding against state conduct that interferes with profoundly personal beliefs,” he wrote.

However, allowing the Ktunaxa to veto the development, because of the religious significance of the area, did not fit with the minister’s mandate, Moldaver wrote, explaining why the final decision was to unanimously dismiss the appeal.

Grant, who believes courts are nervous about linking aboriginal spirituality to the landbase, said there appears to be a fear that indigenous spiritual practices could take priority over state decisions.

The federal and provincial governments have adopted the UN Declaration on the Rights of Indigenous Peoples and, indirectly, the court has thrown the ball back to the political arena, Grant said.

UNDRIP says that “indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupies and used lands.”

Grant believes it is an issue the government must address.

“They have no choice but to put their money where their mouth is,” he said.

“Otherwise, where do aboriginal people in this country go to protect their rights?”

Ruling Calls Into Question Canada’s Commitment to UNDRIP

Margot Venton, lawyer for Ecojustice, an intervenor in the case, said it was hoped there would be a ruling that would reflect that aboriginal spiritual practices are often tied to naturally intact land.

So the outcome is very disappointing and does not seem to properly represent freedom of religion, Venton said.

“What the Ktunaxa believe is that if the grizzly bear spirit leaves, there is no point to the practice because the spirit is not there. So it doesn’t matter whether or not you can do the ritual and go through the motions,” she said.

“The court’s decision that destroying a sacred site doesn’t infringe on freedom of religion worries me quite a bit. I think it’s not in line with the view taken internationally or with the UN Declaration on the Rights of Indigenous Peoples,” she said.

Judgment Should ‘Alarm’ Canadians: Ktunaxa

Disappointment is rife among members of the Ktunaxa Nation and Kathryn Teneese, Ktunaxa Nation Council Chair, said the decision means the Supreme Court is telling every indigenous person in Canada that their culture, history and spirituality are not worthy of legal protection from the constant threat of destruction.

“This judgment should be alarming to Canadians, whether or not they consider themselves religious or spiritual. We brought forward our most private and sacred beliefs in the hopes that the court would earnestly, and in good faith, not just listen, but hear them,” she said.

Instead, there was a profound failure to recognize the values and beliefs of indigenous people, Teneese said, adding that the ruling is in direct contradiction to the ideals of reconciliation and UNDRIP.

“Once again, the worth and value of indigenous peoples is subjugated to the goals of a Canadian state that seems content to continue without them,” she said.

Although there will be no more steps within the legal system, other strategies will be studied, Teneese said.

Proponents Look to Build Smaller Resort

Tommaso Oberti, consultant to Glacier Resorts, said in an interview the proponents are looking at building a smaller resort, with 2,000 beds, which would not need an Environmental Assessment Certificate.

The previous certificate was cancelled by the provincial government in 2015 after it was determined the project had not been substantially started.

However, Teneese said, if plans for a smaller resort are filed, the Ktunaxa will ask the province to conduct an environmental assessment as issues such as water and wildlife corridors would still be affected.

A statement from Arnold Armstrong, chairman of the Glacier Resorts board said the project can now move forward.

“We seek to work in a cooperative spirit and believe that the common good and the beauty of the project will ultimately bring people together,” he said.

Main Image: Commander Glacier by Pat Morrow.

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A precedent-setting case that could affect the ability of First Nations to protect their sacred sites and which has implications for indigenous rights worldwide, is heading to Canada’s top court Thursday.

The Ktunaxa First Nation, based in Cranbrook, in a lawsuit against the B.C. government and Glacier Resorts Ltd, is arguing the first Canadian case based on aboriginal spirituality and freedom of religion and the case has drawn interveners from faith groups, human rights organizations and business groups from across Canada.

Lawyers acting for the Ktunaxa Nation and Kathryn Teneese, Ktunaxa Nation Council Chair, will argue that, in 2012, the Minister of Forests, Lands and Natural Resources violated the First Nation’s religious rights by approving the master plan for the proposed Jumbo Glacier Resort in an area known as Qat’muk, the home of the grizzly bear spirit, where many key Ktunaxa spiritual beliefs and practices are centred.

The argument, which also claims the B.C. government failed to adequately consult Ktunaxa on their constitutionally protected aboriginal rights, was previously rejected by B.C. Supreme Court and the B.C. Court of Appeal, but, in March the Supreme Court of Canada agreed to hear an appeal.

Teneese said both the Charter of Rights and Freedoms and the Constitution Act provide for traditions to be practiced and it is unfortunate the lower courts failed to recognize those rights.

“But we are confident the Supreme Court of Canada will uphold the rights of all Canadians to practice their religions and traditions free from interference and the threat of destruction of sacred places,” she said.

Qat’muk, the name of the land in the central part of the Purcell Mountains, where Glacier Resorts planned to build the massive ski resort, existed long before the Jumbo Glacier proposal and before Canada became a country, Teneese said.

“As a Nation we have spent too much money fighting in the court system to prove what we have always known. Qat’muk is vital to Ktunaxa — as well as (to) local wildlife populations and biodiversity — and must be protected,” she said.

The Ktunaxa is arguing the first Canadian case based on aboriginal spirituality & freedom of religion https://t.co/p6d1FbTw57 #cdnpoli

— DeSmog Canada (@DeSmogCanada) November 30, 2016

The Nation has fought the Jumbo Glacier proposal since it first surfaced in 1991, both on the belief that Ktunaxa spirituality depends on the fate of Qat’muk and on concerns for water quality and the effect of the resort on the grizzly bear population.

Ironically, there is now little chance that the resort will be built as, last year, Environment Minister Mary Polak decided the resort had not met the “substantial start threshold,” meaning the Environmental Assessment Certificate expired.

Jumbo Glacier Resort proponent Oberto Oberti then said the company would build a smaller resort, which would not have to undergo another full environmental assessment.

But, this week, a spokesman for the Forests, Lands and Natural Resources Ministry said “the proponents of Jumbo Resort submitted a revised master plan that was smaller in scope, however this revised proposal was not accepted by the ministry.”

Glacier Resorts is suing the provincial government in hopes of overturning Polak’s decision to cancel the Environmental Certificate, but no court date has yet been set.

However, the legal battle over the principle of freedom of religion continues and legal experts believe that, whichever way the decision goes, there will be significant implications for communities whose religious and cultural practices are connected to sacred sites or animals.

Robyn Duncan, executive director of Wildsight, a conservation group that has fought against the Jumbo Glacier proposal for 25 years, said Thursday will be a truly significant day for the Ktunaxa Nation and the thousands of Kootenay citizens that are standing behind them in their fight.

“This is the first time that a freedom of religion argument will be heard in the Supreme Court on indigenous spiritual and cultural rights. The list of interveners is as long as it is diverse — from Amnesty International to the Canadian Chamber of Commerce to a number of other First Nations,” she said.

“The implications of this case will be far-reaching.”

The 16 interveners also include B.C. Civil Liberties Association, the Canadian Muslim Lawyers Association, Attorney General of Saskatchewan and the Attorney General of Canada.

The case should concern all Canadians of faith says a blog posting from the Christian Legal Fellowship and the Evangelical Fellowship of Canada, who are interveners.

ELC president Bruce Clemenger wrote that the Ktunaxa case has the potential to affect all faith communities.

“The loss of religious freedom for any faith group means a loss of religious freedom for every other faith group in Canada,” he wrote.

“If a religious freedom claim can be overlooked by a government decision-maker, then the freedom becomes hollow. There will be no requirements for governments to respect religious freedom in any meaningful way or to reasonably accommodate our freedom to worship and live out our faith if it may impact others,” he wrote.

The case also puts a spotlight on the broader issue of the rights of government to override the wishes of First Nations, said Montana Burgess, executive director of the West Kootenay EcoSociety.

The EcoSociety previously argued unsuccessfully in the courts against the province’s incorporation of the Jumbo Glacier Mountain Resort Municipality, a municipality without residents or buildings.

The council, made up of a mayor and two councillors appointed by the province, continues to meet, even though there is no action on the development.

Image: Ktunaxa First Nation via ʔaq̓am

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A municipality should have residents — and grizzly bears and mountain goats don’t count, according to B.C. Green Party leader Andrew Weaver who tabled a private member’s bill in the legislature Wednesday aimed squarely at the controversial Jumbo Glacier Mountain Resort Municipality.   Weaver’s bill to amend the Local Government Amendment Act would repeal the Liberal government’s 2012 changes to legislation that made it possible for mountain resort municipalities to exist without residents.   The 2012 changes were designed to push through development of Jumbo Glacier Resort, a proposed 6,300 bed resort in the wilderness of the Purcell Mountains, 55 kilometres west of Invermere — a project strongly opposed by local residents and First Nations.   Jumbo Glacier Mountain Resort Municipality was created in November 2012 and the province then appointed a mayor and two councillors. Even though the municipality had no residents or buildings, it became eligible for provincial government grants of $200,000 a year and about $50,000 in federal gas tax money.

The existence of the municipality has been a flashpoint for many opponents and, with the future of the development now in doubt, there is a renewed push to scrap the no-resident municipality. 

“The idea of a town with no people and an appointed mayor and council to preside over that town is preposterous and flies in the face of local democracy and local decision-making,” said Robyn Duncan executive director of Wildsight, an organization that has been on the front lines of the Jumbo fight.   “It is completely unacceptable that an unelected body can make land-use decisions and be accountable to no one,” she said.   It is a view shared by Weaver, who is adamant that provincial laws should not be used to help specific projects succeed or fail.   “The fact that you can create a municipality with no people and no buildings and put in a mayor and two councillors and give them government money is truly bizarre — only in B.C.,” he said.   The reason the “ridiculous loophole” exists is because the government had a pet project that it wanted to succeed, Weaver said, admitting that the chance of his bill getting the support of government is almost non-existent.   “I am hopeful, but I don’t think it will go through as long as (Energy and Mines Minister) Bill Bennett is in government. This was his clearly his pet project and he was a huge advocate for it,” he said.   If the bill did go through, it is likely the resort municipality would argue to be grandfathered in, Weaver said.   “But this is essentially a shot across the bow. It’s saying clean up your act government. This kind of shenanigans has to stop,” he said.   If nothing else, the realities of climate change should give the government pause, said Weaver, who is a climate scientist.   Between 1985 and 2005 glaciers in that area lost 15 per cent of their total mass and glaciologists predict that, by 2100, glaciers that the resort is relying upon for year-round skiing will not exist, he said.   “It makes no sense on so many levels.”   Last year, after 24 years of controversy, Environment Minister Mary Polak pulled the project’s environmental assessment certificate, concluding the billion dollar project had not substantially started during the 10 years since the certificate was granted.   Proponents, Glacier Resorts Ltd. and the Phaedias Group, have said they plan to appeal that decision and are considering changing the proposal to a smaller resort that would not need to go through a full environmental assessment.   However, any proposal to build in the area will face a legal challenge from the Ktunaxa First Nation, who have been given leave to appeal to the Supreme Court of Canada, based on a freedom of religion argument that could set a precedent for indigenous people worldwide.   The area at the foot of Jumbo Glacier is known as Qat’muk by the Ktunaxa people who believe it is where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world.   Jumbo Glacier Mountain Resort Municipality Mayor Greg Deck, former mayor of Radium Hot Springs, said he hopes the government does not repeal the legislation.   “The wisdom of the original legislation was that it anticipated doing really good planning in advance, through a resort municipality, and I believe that is still valid,” he said.   People who disagree with plans for the Jumbo Valley should not try and take away a tool that could be valuable in other areas, Deck said.   In the meantime, the municipality is deferring acceptance of government grants until the situation around the development clarifies.   “We are a little bit hostage to legal challenges. The Ktunaxa appeal adds a bit more uncertainty which we have to wait out,” Deck said.   The bulk of the municipality’s money has gone on defending a series of legal challenges, Deck said.   “It’s a bit frustrating when people say we shouldn’t be spending money and then they keep suing us.”

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The Ktunaxa Nation, which for 25 years has battled plans to build a massive ski resort on land that is considered sacred, will make its case to Canada’s top court with a freedom of religion argument that could set a precedent for indigenous people worldwide.   The Supreme Court of Canada has agreed to hear the Ktunaxa appeal of a 2012 decision by the B.C. government to approve plans by Glacier Resorts Ltd. for a 6,250 bed, all-season ski resort on Crown land in the Purcell Mountains, about 55 kilometres west of Invermere.   Plans called for Jumbo Glacier Resort to be built at the foot of Jumbo Glacier in an area known as Qat’muk by the Ktunaxa who believe it is where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world. That means it is an area where Ktunaxa people receive strength and guidance and they believe the development would desecrate the sacred area.

The Ktunaxa previously argued unsuccessfully in front of B.C. Supreme Court and the B.C. Court of Appeal that allowing the development to go ahead violated the Nation’s right to freedom of religion and that the B.C. government failed to consider that right or adequately consult Ktunaxa on their constitutionally protected aboriginal rights. Both cases were dismissed. 

Kathryn Teneese, Ktunaxa Nation Council Chair, said in an interview that she is elated about the Supreme Court decision.   “I am certainly pleased that, at last, we are going to have the opportunity to present our story to the Supreme Court of Canada,” she said.   “Our right to freedom of religion should not be held in less regard than that of other Canadians. We are confident that the Supreme Court of Canada will agree that Ktunaxa beliefs and practices are vital to who we are and must be taken into account by statutory decision-makers.”   The fight is not just for Ktunaxa, but for every Canadian who values the Charter of Rights and Freedoms, Teneese said.   The case will inevitably be watched closely by groups throughout Canada and the world, said Teneese, who added that legal teams are already looking at lists of possible intervenors.   “It is my hope the Supreme Court of Canada is cognizant of the impact this case may have on indigenous people, not just in Canada, but worldwide,” she said.   Looking at average wait times for Supreme Court cases, it is possible the case will go to court in the winter of 2017, which will give plenty of time to prepare, Teneese said.  

Jumbo Wild, a documentary about the battle over the Jumbo Glacier Resort, has recently been added to Netflix.

The Jumbo Glacier battle has brought a diverse group of environmentalists, business people, local politicians and First Nations together in opposition and Robyn Duncan, Wildsight executive director, said people in the area are overjoyed that the Ktunaxa values and spiritual beliefs will be explained in the highest court in Canada.   “People locally are very excited — not only for what this means for Jumbo, but what it means to the Ktunaxa. The fight to protect Qat’muk has built a bridge between the Ktunaxa Nation and non-native locals to work together to protect this special place,” Duncan said.   The immediate effect of the appeal is not likely to be apparent because Environment Minister Mary Polak ruled that the project had not been substantially started and pulled the project’s Environmental Assessment Certificate last year.   However, the development group, Pheidias Project Management Corp., is asking for a judicial review of that decision and has alleged that Polak’s friendship with Teneese influenced the decision.   That came as a surprise, Teneese said, with a laugh.   “I didn’t know we were that close. I have a cordial working relationship with all the government officials I have to deal with and I certainly don’t know Ms. Polak in a way that would suggest a friendship.”   The development group is also looking at scaling down the scope of the resort to fewer than 2,000 beds in an effort to avoid starting the environmental assessment process from scratch.   Tommaso Oberti, Phaedias Group vice-president, said in an interview that he does not yet know the effect the Ktunaxa leave to appeal will have on the company’s plans, but it is obviously important.   “We hope justice will be served,” he said.   There are currently several balls in the air, but the project is still alive, said Oberti, reiterating that, with a smaller resort, there will be no need to go back to square one.   “We are trying to understand the process and it seems to be at the minister’s discretion,” he said.   “We are waiting for direction from the province.”   A smaller, cozier resort is very doable and would fit well with the area, Oberti said.   But Teneese emphasized that the objections would be the same, whatever the size of the resort.   “Legal counsel has advised us that they have no legal authority to do anything right now because they don’t have an Environmental Assessment certificate,” she said.   Duncan agreed that Glacier Resorts has no legal authority to move forward with any size of resort.   “The Jumbo Valley is sacred territory for the Ktunaxa and critical grizzly bear habitat. No permanent development should take place there,” she said.

Photo: Howard P Smith of Phototide

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A film documenting a battle that has stretched over almost a quarter century, pitting communities and environmental groups in B.C’s Kootenays against supporters of a proposed wilderness ski resort, is showing to sold-out audiences across North America.

The stunning scenery of the Purcell Mountains, iconic historical clips and the even-handed exploration of a clash between two visions of wilderness make Jumbo Wild an extraordinary documentary that transcends local issues and delves into the ideological battle between those who want to keep the wild in wilderness and those who believe development gives people access to nature.

“We saw sold-out shows at almost all the stops along the way and that’s because the bigger questions being addressed about how we define wilderness and what makes a place sacred are important to people around the world,” said Tess Byers, spokeswoman for Patagonia, the outdoor clothing company that funded and promoted the Sweetgrass Productions film, directed by Nick Waggoner of Salt Lake City.

In Victoria, where the film was first shown to a sold-out audience in October, a planned Dec. 10 free screening at Patagonia on Yates Street sold out immediately and there is the possibility of a second showing in January (you can add your name to the waitlist here).

[view:in_this_series=block_1]

Jumbo Wild will also be available on iTunes, Vimeo, Amazon, GooglePlay, Vudu and Playstation on Dec. 11 and will be available in February on Netflix and Hulu. Showings also continue across North America and individuals can host their own screening for $99. All proceeds will go to Wildsight, a group that has fought the Jumbo Glacier Resort proposal since its inception.

The film is now being seen around the world and inspiring audiences to take action, not only on protection of the Jumbo Valley, but also in their own backyards, said Robyn Duncan, executive director of Wildsight.

The saga of the Jumbo Wild campaign is a story of love for wild places, a community coming together to successfully oppose a development they do not want and the story of the Ktunaxa Nation standing their ground to protect their sacred territory, Duncan said.

“The film resonates with people on a deeper level, cutting to the deeper questions of what is wilderness and what are we, as a society, willing to do to protect the wild,” she said.

Patagonia Funding of Doc Rankles Oberto Oberti

However, the Patagonia funding created a controversy of its own, raising questions about bias, especially as the company has supported Wildsight’s fight against Jumbo Glacier Resort and is now advocating for the remote Jumbo Valley to be protected.

But director Waggoner was determined to do justice to all sides of the argument, Byers said.

“While Patagonia’s pro-conservation stance has been no secret for several years, Nick Waggoner made this film and he approached it as a documentary endeavour in every way,” Byers said.

“He gave significant credence to the developers’ arguments during research, production and in the final film that frankly outweighs the balance present in many modern social documentaries.”

That was not the view of Oberto Oberti, the architect who first envisioned the mega-resort in the Jumbo Valley and who has been battling ever since to make his dream a reality.

Waggoner spent a considerable amount of time with Oberti and Glacier Resorts vice-president Grant Costello while making the film, but did not immediately disclose who was funding the project.

“It may be offensive to Canadians (and to justice) to see that a movie made by an American and as an advertising project for a foreign company like Patagonia is made to reverse the CORE land use decision (the legal, political, democratic and moral foundation of the two decades of process for the Jumbo Glacier Resort project) when both sides of the story are not given equal weight,” Oberti wrote in an open letter to Waggoner after being informed about Patagonia’s involvement.

But the film takes a remarkably balanced stance, showing Oberti, not as an evil developer riding roughshod over local wishes, but as a man who believes in his mission and in the ultimate good of building a resort that will allow others to experience the beauty of the area.

“Are you proposing to Patagonia the idea that to keep the JGR territory for exclusive use of wealthy heliskiers and for snowmobilers is a better use?” Oberti asks in the letter.

One of the most telling segments of the film is when Oberti, who was born in Italy, says “creating a mountain resort and access to the mountains is like creating a cathedral” and describes the soaring peaks and glaciers as the “Alps multiplied by 1,000 times.”

For many opposed to the plan for a billion-dollar, 6,300 bed resort, the commercialisation of the Alps is exactly what they want to avoid.

“My church is up there. You can’t get any closer to God can you?” asks Nolan Rad, who has spent almost seven decades hunting, trapping and fishing in the area.

The ultimate opposing viewpoint to Oberti’s vision comes from Joe Pierre of the Ktunaxa First Nation, who regard the area as sacred.

“He’s come here to build a monument to himself. Talk about being offensive to a world view that for 400 generations have never even considered that. It’s hard to take,” Pierre said in the film.

A rare nod to the animosity created by the proposed development comes from Grant Costello.

The opponents don’t believe humans should be allowed to change the environment, he explained.

“I don’t want to lose to these people. That’s what it really comes down to,” he said.

However, for Glacier Resorts and Oberti, the lengthy battle was all but lost in June when Environment Minister Mary Polak decided the project had not substantially started before its environmental certificate expired.

To continue would mean starting the environmental assessment process from scratch.

But Oberti is not ready to give up and is planning a smaller development that would avoid the need for a full environmental assessment.

Tommaso Oberti, Pheidias Group vice-president, said in an e-mail to DeSmog Canada that the company is working on a revised master plan.

“It won’t look very different. It will just be a smaller development. I don’t know yet what the timelines will be,” said Tommaso Oberti, who has not watched the film.

“But I understand there is some beautiful scenery (in the film),” he said.

So, the battle for the wilderness is not yet over and, whether or not skirmishes will continue in the peaks and glaciers that surround the Jumbo Valley, the film documenting the fight is now inspiring communities around the world.

Image: Howard P Smith, First Light on Jumbo.

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The Ktunaxa Nation is deeply disappointed with a B.C. Court of Appeal ruling on a challenge to the province’s approval of Jumbo Glacier Resort’s development plans, says Kathryn Teneese, Ktunaxa Nation Council Chair.

Last year the Ktunaxa argued in B.C. Supreme Court that there was not adequate consultation before the province signed a Master Development Agreement with Glacier Resorts Ltd. for the controversial Kootenay ski resort and that development in an area considered sacred by the First Nation would violate their constitutional right to freedom of religion.

That petition was dismissed by the Supreme Court and the Ktunaxa launched an appeal, which was heard in May but, on Thursday, the Court of Appeal upheld the initial ruling in favour of the provincial government.

“The decision of the minister to approve the Master Development Agreement did not violate the Ktunaxa’s freedom of religion guaranteed under section 2a of the Charter. The minister did not breach his duty to consult and accommodate,” the ruling reads.

Teneese said an official response to the decision will be released next week.

“We are working closely with our legal team to analyze this ruling and other developments to determine what our next steps may be,” she said.

The court ruling is the latest twist in the 24-year Jumbo Glacier Resort saga.

Despite strong opposition to plans for a billion dollar, 6,300-bed resort in the Purcell Mountains wilderness from local politicians, environmental groups and the Ktunaxa, the province granted Glacier Resorts an Environmental Assessment Certificate in 2004 and renewed it in 2009.

However, Environment Minister Mary Polak pulled the Environmental Assessment Certificate this summer after concluding the project had not substantially started.

That means the project would have to go back to square one with a new application for a certificate, but company spokesman Oberto Oberti said last month that Glacier’s lawyers will submit a request for a judicial review of Polak’s decision or will come up with plans for a smaller project that would be below the threshold of Environmental Assessment regulations.

Robyn Duncan, executive director of Wildsight, a major opponent of the project, said the Court of Appeal ruling is a blow as it removes one of the ways the project could have been stopped.

“The big take-away is that the Master Development Agreement remains intact. They still can’t develop anything without an Environmental Certificate or without reducing the scale of the project and having that approved, but, nonetheless, it remains intact,” she said.

Meanwhile, both sides are awaiting another court ruling.

A B.C. Supreme Court judge has reserved her decision on an application by the West Kootenay EcoSociety to dissolve Jumbo Glacier Mountain Resort Municipality.

The municipality, which has no residents or structures within its boundaries, was formed to administer the development agreement.

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There are no residents or buildings in the municipality of Jumbo, B.C. The only development proposal planned for the voterless town — the Jumbo Glacier Ski Resort — has been sent back to the drawing board by the province and a Supreme Court judge is considering an application to dissolve the municipality.

But, for now, activity in the Jumbo Glacier Mountain Resort Municipality will continue as usual, says Mayor Greg Deck.

The Kootenays municipality of Jumbo was created by the provincial government (some say undemocratically) in 2012 for the sole purpose of dealing with the controversial Jumbo Glacier Resort project, but in July the Environment Ministry allowed its environmental certificate to expire after ruling the project had not been substantially started in time to meet its permit deadline.

Read Democracy Interrupted: How Jumbo Glacier Resort Became a Municipality with No Residents

That means plans for a massive all-season, wilderness ski resort in the heart of the Jumbo Valley must either be scrapped or proponents must start from scratch and ask the province for a new environmental assessment.

“We want to finish the Official Community Plan by the end of the year. We don’t want it to be a problem because it was left undone. It’s a good insurance policy,” Deck told DeSmog Canada.

“We are doing business as usual with an eye on how the proponents will work out the differences with the province,” said Deck, former mayor of Radium Hot Springs and chair of the Columbia Basin Trust.

The project has a long, controversial history. In 1991, Oberto Oberti of Pheidias Project Management Corp. and Glacier Resorts first envisioned a massive all-season ski resort in the wilderness, about 55 kilometres west of Invermere, but the project was bitterly opposed by environmental groups, the Ktunaxa First Nation and many local residents.

Despite the opposition, the province granted an Environmental Assessment Certificate in 2004 and it was renewed in 2009. But progress on constructing the 6,300 bed resort before the October 2014 deadline was almost non-existent and Environment Minister Mary Polak pulled the certificate.

A spokeswoman for the Community, Sport and Cultural Development Ministry said the proponent’s choices now include seeking a judicial review of Polak’s decision or resubmitting the proposal.

“Regardless of the proponent’s decision the municipality will remain intact until a decision is made by government about its future,” she said.

Resort spokesman Tommaso Oberti could not be contacted by DeSmog Canada, but, after Polak’s decision, he told media outlets that directors are reviewing the decision and plan to speak to ministry officials about ways to move forward.

A hint of the next step came in a February 2014 letter from Oberto Oberti to Deck which said “If everything else failed, (which I really think is an impossible case), Glacier would simply re-apply for the [environmental assessment] certificate.”

Deck does not see any problem with the municipality continuing to do business.

“I wouldn’t rule out a development proposal yet…and I am optimistic the municipality will survive,” he said.

However, Jumbo council has decided to defer accepting the annual Small Community Grant of $200,000.

“We thought it prudent to say ‘hang on to it for now,’” Deck said.

“There is a notion that we would be profligate just because we are in favour of destination resorts, but we are very frugal with the funding we have and our previous funding allows us to continue for the rest of the year.”

The municipality initially received a $260,000 provincial grant and, since 2012, has received the grant of $200,000 a year, most of which has been spent on building a bridge into the municipality and legal fees. About $50,000 in federal gas tax money has also flowed to Jumbo.

Another threat to the municipality’s existence is an application to the B.C. Supreme Court by the West Kootenay EcoSociety to dissolve the municipality.

Lawyers for the EcoSociety argued in court last week that the province exceeded its discretionary powers by creating a municipality with no voters. Justice Grace Choi has reserved her decision.

EcoSociety executive director David Reid said he is not expecting a fast decision, as it is a complicated case that challenges the discretion of the cabinet and the use of public resources to support corporate interests.

Even though the environmental assessment certificate for the resort has been yanked, the Jumbo Valley remains at risk for as long as the municipality exists, Reid said.

“Does it sit there forever? Is there no deadline?” he asked.

Image Credit: Lynne Martel via Pique Magazine

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A billion-dollar plan to build a 6,300-bed resort in the glacial wilderness near Invermere is essentially dead in the water after B.C. Environment Minister Mary Polak ruled Thursday that construction on the controversial Jumbo Glacier Resort did not start in time.

That means the project’s environmental assessment certificate has expired and the proponent, Glacier Resorts Ltd, would need to re-apply if it wanted to continue with the project.

 “We are overjoyed with the province’s decision,” said Robyn Duncan of Wildsight, a group that has fought the project for years. “This is the only reasonable outcome for this beleaguered project.”

The province granted an environmental assessment certificate to Glacier Resorts Ltd. in 2004 and the certificate was renewed in 2009. It could not be renewed for a second time, and the Environmental Assessment Act requires that projects be “substantially started” within the time limit set out in the certificate.

Polak ruled that the project hadn’t been “substantially started” by Oct. 12, 2014, 10 years after the certificate was issued.

Last fall, DeSmog Canada published a 13-part series on Jumbo Glacier Resort, examining concerns about democracy, court challenges to the project, the concerns of the Ktunaxa Nation, threats to grizzlies and the threat posed by climate change to the Jumbo Glacier.

Photo: Howard P Smith, phototide.com

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A decision on whether pouring two building foundations and clearing trees constitutes a “substantial start” for the Jumbo Glacier Resort project will be made by the Environmental Assessment Office in June and the report will include information on buildings located within avalanche zones.

That assessment will then go to Environment Minister Mary Polak for the final verdict on whether the controversial billion-dollar resort should go ahead.

“Our current plan is to have a decision on whether the project has been substantially started by early to mid-June,” said an Environment Ministry spokesman.

“Before finalizing the report we will be providing Glacier Resort Ltd., Ktunaxa Nation Council and the Shuswap Indian Band an opportunity to review a confidential draft of the report.”

That could include comments on the effect of an Environmental Assessment Office order to stop work on the two buildings because of avalanche threats, he said.

The stop work order was issued after a report found the service building was in a high-risk avalanche red zone and the day lodge — which was originally planned for another site — was in the moderate-risk blue zone.

Plans for the 6,300 bed resort on Crown land west of Invermere have been in the works for 24 years.

The project was granted an Environmental Assessment Certificate in 2004, which was renewed in 2009, but little work was done on the site until a flurry of activity shortly before last fall’s deadline. For the certificate to become permanent, Glacier Resorts must prove that construction was well underway before the deadline.

Tommaso Oberti, vice-president of the project’s management company, said the location of the day lodge and the service building had to be changed at the last minute because of deadline pressures and the new sites were chosen based on available avalanche mapping.

The project team believed “without a doubt that, following the opening of the ski area, the avalanches would have been, in the worst case, smaller, not larger, because of planned and effective mitigation measures such as bombing,” Oberti said in an email.

The service building will not be used in winter, to respect the determination of a 30-year risk occurrence, but the day lodge is safe and there are numerous examples of how risks are managed at other resorts, Oberti insisted.

“It is safe and it must be permissible to build a day lodge in a blue zone with application of avalanche risk mitigation measures that reduce the risk to people and structures to an acceptable low risk level,” he said.

The main resort and overnight tourist accommodation are in a part of the valley without avalanche risks, Oberti said.

Invermere Mayor Gerry Taft, who opposes the project, said the stop work order means little as, after the deadline, the company was not permitted to continue building until there is a decision on whether to hand them an Environmental Assessment certificate.

The order makes it appear as if the province is strictly enforcing its rules, but it is more like a public relations move, said Taft, who added that few people in Invermere are confident that the provincial government will make the right decision.

“I don’t have much faith in the government…I look at things quite cynically,” he said.

Image Credit: Jumbo Glacier Resort via Flickr

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A provincial delay in deciding whether construction of Jumbo Glacier Resort has substantially started is giving hope to opponents that close scrutiny will lead to the province yanking the resort’s environmental assessment certificate.

“It seems impossible to me that a minister with even the slightest self-respect could look at this and proceed with it,” said Norm Macdonald, Columbia River-Revelstoke MLA.

In order to keep the environmental assessment certificate, first issued in 2004, Glacier Resorts Ltd. had to prove by mid-October that substantial progress had been made on construction of the billion-dollar, all-season ski resort in the remote heart of the Purcell Mountains.

Concrete slab foundations were poured in October for the day lodge, lift and service building, but the day lodge was moved from the original plans to an area that a report by Meiklejohn Architects concluded is outside the land tenure. The new location also puts the lodge directly in the path of high-magnitude, high-frequency avalanches, according to local mountain guides and RK Heliski, a company that has operated in the area for 44 years.

A condition of the environmental assessment certificate is that structures should be located completely outside the avalanche hazard area.

Avalanche concerns erupted in the legislature in November and, at that time, Environment Minister Mary Polak said she believed the proposed resort buildings were outside the avalanche zone.

But, in a letter sent to Glacier Resorts Dec. 11, the Environmental Assessment Office asked for a new engineering avalanche risk evaluation and a zoning plan based on possible impact pressures from avalanches.

The letter, from Environmental Assessment Office policy and compliance manager Autumn Cousins, says the zoning plans should be led by an engineer who is a member of the Canadian Avalanche Association.

The new evaluation is in addition to a report provided by Glacier Resorts to the Environmental Assessment Office in November that concludes that extensive mitigation, with avalanche control by explosives, will be needed to avoid danger at the day lodge.

“Although no damaging avalanche has reached the lodge site, a larger avalanche than had occurred in the past or an avalanche with an irregular flow direction could hit the lodge,” it says.

But professional mountain climbing guide Arnor Larson, who has taken visitors into the area for four decades, said the company doesn’t seem to have considered that avalanches have to be bombed from helicopters and the wild storms in the area frequently ground helicopters.

“Sometimes a big storm can last multiple days and the helicopters can’t get up,” he said.

“In my opinion, from being a guide in the area since the early 1970s, I certainly wouldn’t tell guests that they can manage the avalanche issue there.”

It is not only the pressure of the snow, but the wind from an avalanche can severely damage buildings, he said.

Renowned mountain climber and photographer Pat Morrow, who lives in the nearby East Kootenay community of Wilmer, has been trying to raise the alarm about avalanche hazards for several years.

“Above and beyond the location of the lodge, there’s also the vulnerability of the gondola towers from the lodge to the head of the Jumbo Valley that are in an even more threatened position than the lodge,” he wrote in an e-mail.

Larson, like others, is puzzled why, at the last minute, Glacier Resorts would change the location of the day lodge.

In October a pole stuck in the ground showed the lodge in a damp, forested area, but it has now moved closer to the open meadow area, where avalanche tracks are etched into the surrounding mountains.

Macdonald believes the day lodge concrete pad was laid in the new location because it was easier to build.

“All they are trying to do is put something there and they didn’t think there would be any tremendous amount of scrutiny,” he said.

Questions were also raised in the Meiklejohn report about other changes to the resort plans, ranging from parking to sewers, that must be made if the day lodge has moved.

In addition, the report questions why the slab has been laid without roughed in sewer drainage piping.

“No evidence was visible, either above the slab or at the building perimeter (e.g trenching) that any of the rough-ins that may have been required had been installed,” says the report, which was prepared for the Ktunaxa Nation Council.

The Ktunaxa Nation is vehemently opposed to the plans for a 6,000-bed resort on land they consider sacred.

Tommaso Oberti, vice-president of the resort’s project management group, did not reply to questions from DeSmog, but told the Vancouver Sun that the company is doing more detailed avalanche zone mapping and will provide a response to the government shortly.

Image Credit: Jumbo Glacier Resort

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This is a guest post by Gerry Taft, the mayor of Invermere.

When most of us think of a small town, we think of friendly neighbours and quiet streets — the type of place where you know almost everyone. I’m privileged to be elected as mayor of Invermere, B.C., which is pretty close to being a perfect small town. 

However, about 55 kilometres from Invermere, down rough old logging and mining roads, lies another kind of “small town.”

The “small town” of Jumbo, also known as the Jumbo Glacier Mountain Resort Municipality, is not home to friendly neighbours or quiet streets. In fact, it is completely empty — a wilderness with no residents and no buildings.

On Nov. 15th, when every other town in B.C. will vote for new municipal leaders, there will be no voting in Jumbo.

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How did it come to this?

Glacier Resorts Ltd. has wanted to build a 6,300-bed ski resort on Crown land for 24 years. While the proponents envision a village of condos, shops and hotels and more than 20 ski lifts, many locals like myself oppose a new dense urban development in an area already awash with ski resorts operating below capacity. (A 2008 random survey by McAllister Opinion Research found 63 per cent of Kootenay residents oppose the resort, with 19 per cent in favour and 18 per cent undecided.)

Faced with strong local opposition, the province has tried to fit a round peg into a square hole. Instead of admitting it won’t fit, the province has changed the hole until that peg fits.

The only reason there is a “municipality” here in the mountain wilderness is because in 2012, the provincial government amended the Local Government Act to allow the creation of a municipality without residents. Next, the province appointed a mayor and two councillors. And then a provincial order-in-council mandated that the council adhere to the terms of Jumbo Glacier Resort’s Master Plan — not to citizens.

This series of events ruffled many feathers, but what came next was even worse. Jumbo received a $260,000 provincial grant and $50,000 in federal gas tax money.

Why would a “town” with no residents and no services require taxpayer dollars? Well, there are bridges to build and infrastructure to construct before real estate can be sold. Given the Jumbo Glacier Resort is a private development, you’d think the infrastructure would be fully funded by the developer – but not in the case of Jumbo.

Jumbo Glacier Mountain Resort Municipality has asked for $200,000 a year from the province for the next five years. In its five-year financial plan, the municipality is predicting $0 in tax revenue, $0 in funding from the developer and 100 per cent of funding to come from government grants.

At the recent Union of B.C. Municipalities convention, my motion to oppose provincial funding for towns without residents was adopted unanimously by local politicians from all over our province.

Aside from grasping for taxpayer dollars, the reason Jumbo municipality exists is to circumnavigate a key condition of the resort’s environmental assessment certificate, which dictates that final land use decisions be made by local government. Of course, the intent was for elected, accountable local government to make the decisions, not a puppet appointed council.

Residents of the Columbia Valley want to map their region’s own future. The environmental assessment was focused solely on mitigating environmental impacts. The question of whether we want a dense urban development and private real estate speculation in the mountain wilderness has never been posed to our community.

The environmental assessment certificate for the Jumbo resort expired on Oct. 12, unless the province rules that the proponent has made substantial progress. In yet another case of corners being cut, the resort was hastily laying foundations the week before the deadline in a last-minute push to show progress.

Three days before the construction deadline, B.C.’s 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. Last week, a debate at the Legislature raised the question of whether the foundation for a lodge was built in a Class 4 Avalanche Zone.

The big question now is when the province of B.C. will call an end to the farce of the “town” called Jumbo. The cost of failing to act is at least $1.3 million in taxpayer funding, the sell-off of Crown land at bargain basement prices and, most of all, the complete disregard for the basic concept of what democracies are … and what small towns should be.

Photo: #Democracyforjumbo via @Tweetwild

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