The continuous flow of dangerous pollution from B.C.’s Elk Valley coal mines into a Montana watershed is a top discussion item for Canadian and U.S. delegates convening at a bilateral meeting in Washington, D.C., Thursday.

Selenium from five metallurgical coal mines owned and operated by Teck Resources has been leaching into B.C.’s Elk River and flowing southeast into Montana’s Kootenai River watershed for decades. Contamination levels measured in U.S. waters exceeds maximum concentration limits outlined by the U.S. Environmental Protection Agency.

Selenium is released from waste rock piled at Teck’s large-scale open-pit coal mines, where rainfall and snowmelt draw it into the Elk and Fording Rivers. Selenium can be harmful to biological organisms at even small amounts and causes deformities in fish and birds.

Michael Jamison, program manager with the National Park Conservation Association’s Glacier Field Office in Montana, said it’s a good sign the pollution of the transboundary watershed is on the bilateral agenda.

“People have been discussing the transboundary water issue between B.C. and Montana as a potential agenda item for the bilaterals for over a decade,” Jamison told DeSmog Canada. “They’re finally there.”

The decades-old problem of contamination received new attention from top U.S. officials, including former Secretary of State Rex Tillerson, who vowed to put pressure on his Canadian counterparts to address the ongoing pollution problem.

Montana Senator Jon Tester has been raising the profile of the issue for years, saying the Kootenai watershed, which is a popular spot for recreational fishing and outdoor activity, is threatened by B.C.’s pollution.

Tester pushed for the Kootenai to be included in the recent U.S. government-spending bill, signed by President Donald Trump, which lists reducing the pollution flowing into the watershed as a budget priority.

“It seems like there’s some traction here that we’ve been missing for some time,” Jamison said.

“But this is what baffles me — it’s bad enough that us in Montana, the U.S. State Department and tribes on this side of the border are prioritizing it. But it must be so much worse farther north.”

“I guess I don’t understand how B.C. puts up with that.”

Teck was the single largest donor to the BC Liberal party, which governed B.C. for 16 years until last year. Between 2008 and 2017, the company gave $1.5 million to the BC Liberals. The company also donated $60,000 to the B.C. NDP in that same period.

Teck’s ongoing selenium nightmare

The reality of Teck’s selenium problems have unfolded over the last decade as the company has tried — unsuccessfully — to introduce an effective water treatment facility.

In October 2017 Teck pled guilty to three violations of the federal Fisheries Act for its pollution of the Elk River and was fined $1.4 million for a 2014 fish kill near the company’s Line Creek wastewater treatment plant.

The $600 million water treatment plant had only been in operation for four months when the fish kill — which included local bull trout, a species of special concern — occurred.

An expert report prepared for Environment Canada in 2014 found selenium poisoning caused spinal, head and skull deformities, missing fins and disfigured gill plates in fish eggs brought to laboratories to be hatched.

“As these surface mines have expanded, so has the volume of their selenium-laden water discharges to nearby stream and rivers,” Dr. Dennis Lemly, research associate professor at Wake Forest University in North Carolina, wrote in his report.

Lemly warned the Elk River watershed was at a tipping point and that further increases in selenium concentrations could lead to a “total population collapse of sensitive species such as westslope cutthroat trout.”

Erin Sexton, senior scientist with the University of Montana’s Flathead Lake Biological Station told DeSmog Canada that B.C. has granted permits for Elk Valley mines that allow for selenium levels ranging from 70 micrograms per litre to 19 micrograms per litre while the provincial criteria for protection of aquatic life is 2 micrograms per litre.

U.S. EPA regulations limit acceptable selenium pollution levels to 1.5 micrograms per litre.

Jamison said the rules don’t seem to apply to Teck’s mining operations in B.C. even after the company has been found to be in violation of provincial regulations.

“The regulators up north said, ‘nah that’s cool. As long as you promise you can fix it, you get your permit,’ ” he said.

“Whereas down here we have different methods to review, permit, monitor and regulate mines. And there’s not a lot of wiggle in it.”

“The lines seem to be drawn in ink on the U.S. side, and in pencil on the Canadian side.”

In the fall of 2017 Teck shut down the Line Creek water treatment plant after it found the facility was releasing a more bioavailable and thus more toxic form of selenium into the region’s waterways. Teck has since notified the B.C. government the treatment plant will be offline until 2018.

“Teck has invested millions in multiple treatment technologies, and at least twice they have shut down their one and only treatment plant, due to impacts to fish,” Sexton told DeSmog Canada.

“First for a fish kill, and now for a technology ‘error’ resulting in bio-concentration of selenium in the wastewater — the exact opposite intent of the treatment.”

Sexton, who has studied transboundary water quality for the last decade, said Teck and the B.C. government have not been forthcoming with their data on these issues.

“Frankly, we collected our own data in the Elk River system — the Flathead Lake Biological Station collected data for water quality and bugs — and Montana Fish and Game collected data for fish — because of the lack of data availability, transparency, and scientific objectivity that has characterized this issue for over a decade,” she said.

B.C. Minister of Environment George Heyman was unable to provide comment by time of publication.

“The lines seem to be drawn in ink on the U.S. side, and in pencil on the Canadian side.” https://t.co/f5UhxC79WC

— DeSmog Canada (@DeSmogCanada) April 26, 2018

Mine permits issued despite Teck’s prolonged pollution problems

Dave Hadden, executive director of Headwaters Montana, said he’s pleased to see the Kootenai listed on the bilateral agenda, but is concerned neither short-term nor long-term solutions are clearly at hand.

“This is a multi-century problem,” Hadden told DeSmog Canada. “The problem is not going to go away and there needs to be a mechanism that finds a solution for addressing a multi-century problem that is fair to Canada, fair to the U.S. and that provides mitigation for these impacts.”

Headwaters Montana is one of a coalition of groups asking B.C. follow international water quality standards before new Elk Valley coal mines are approved.

Lars Sander-Green from B.C. conservation group Wildsight said B.C. actively grants permits and approvals to Teck that not only maintain operations but allow for expansion.

“It’s more than just up and running. In order to continue mining and exporting coal they continue to expand their footprint, which means expanding their waste rock piles and the selenium problem,” he told DeSmog Canada.

A 2016 report from B.C. auditor general Carol Bellringer found it concerning that permits were granted to Teck Resources to expand its Line Creek Mine after staff at the Ministry of Environment found an expansion of the mine would exacerbate selenium pollution problems.

At the time, the BC Liberals granted a permit for the expansion invoking — for the first time in B.C. history — section 137 of the Environmental Management Act, which allows government to introduce waste into the environment if deemed in the public interest.

“Perhaps we should be looking at a temporary moratorium, additional fines or compensatory mitigation with biological offsets in other areas given the legacy of impacts they have created in the Elk,” Sexton said.

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A forestry industry lobby group is working to undermine Canada’s plans to protect endangered caribou, according to several experts.

The campaign, ‘Caribou Facts,’ launched by the Forest Products Association of Canada (FPAC), is designed to cast doubt on the science of caribou conservation.

Several caribou populations in Canada are listed as threatened or endangered under the Species At Risk Act, which means provincial and federal governments are legally required to protect habitat and develop recovery plans to avoid localized extinction.

Scientists have pinpointed habitat fragmentation, caused by things like oil and gas activity, seismic lines, forestry and hydroelectric development, as the leading cause of caribou declines.

“We know more about caribou than almost any other species in Canada,” says Mark Hebblewhite, associate professor of ungulate habitat biology at the University of Montana.

John Bergenske, conservation director for Kootenay conservation group Wildsight, said the forestry industry is trying to shift emphasis away from habitat.

“But it all boils down to habitat,” Bergenske said. “There’s not a single scientific paper that won’t go back to that when you’re talking about caribou.”

Industry Campaign ‘Misrepresents’ Caribou Declines, Creates Doubt

The Caribou Facts website raises questions about the cause of caribou declines in Canada, sowing doubt that recovery plans are “based on sound science.”

Canadians are encouraged to sign a petition targeted to MPs with suggested text that reads, “I’m afraid that the wrong approach will do nothing for caribou and will kill thousands of Canadian jobs.”

Hebblewhite said the website “misrepresents” the causes of caribou decline, which are well known to the scientific community.

Screenshot/CaribouFacts website

“They are trying to create a sense of uncertainty,” he said. “Just like the anti-climate science lobbyists do: they want to say it’s too uncertain, we can’t do anything.”

“That’s complete bullshit,” Hebblewhite told DeSmog Canada. “It is disingenuous to anyone with half a brain.”

The forestry industry has tried to move the government’s focus away from the issue of caribou recovery to that of job losses, Bergenske said.

“It is a really unfortunate ploy.”

The Forest Products Association of Canada told DeSmog Canada a spokesperson could not be made available to comment on this story.

ICYMI: Oilsands Companies Scramble to Reclaim Seismic Lines in Endangered Caribou Habitat

Carolyn Campbell, conservation expert with the Alberta Wilderness Association, said the Caribou Facts campaign represents a “big step back” for the industry group when it comes to caribou recovery.

The Caribou Facts website seems to undermine the Forest Product Association’s own commitment in 2012 to the Canadian Boreal Forest Agreement and their own methodology for how to move forward together on caribou recovery, Campbell told DeSmog Canada.

“At that time they recognized loss of habitat as the key driver of caribou loss.”

According to provincial estimates, caribou in Alberta are disappearing at a rate of about eight per cent per year due to habitat loss from energy and forestry development, which in turn increases the reach of predators like wolves into caribou habitat. A total of 96 per cent of the critically endangered Littly Smoky caribou range is within 500 metres of human development.*

ICYMI: Wolves Scapegoated While Alberta Government Sells Off Endangered Caribou Habitat

ICYMI: Alberta to Sell More Oil and Gas Leases in Endangered Caribou Habitat

Campbell said the Canadian Boreal Forest Agreement resulted in deferred logging in caribou ranges, although she adds, some recent studies of mapping show those deferrals weren’t always honoured.

Critical caribou habitat in British Columbia has also suffered continued industrial incursion.

As DeSmog Canada reported in April, the B.C. government granted permits to Canfor, a member of the Forest Products Association of Canada, to log in critical mountain caribou habitat.

The permits were granted to Canfor despite the provincial government’s knowledge mountain caribou are at risk of extinction and the company’s own commitment to avoid logging in critical habitat for species at risk.

Canfor engaged in clear-cut logging near Wells Gray Provincial Park while locals appealed to Environment Minister Catherine McKenna for an emergency stop-work order and an enforcement of federal Species At Risk laws.

Campaign Targets Minister at Critical Time

Species at risk are listed by the federal government on the recommendation of the non-governmental Committee on the Status of Endangered Wildlife in Canada (COSEWIC). Once listed those species are then subject to a recovery goal that identifies critical habitat. In 2012 the federal government laid out a goal of 65 per cent undisturbed habitat in caribou ranges — a target provinces must now work into provincial recovery plans.

Those plans were due on Oct. 5 — but the vast majority of provinces failed to meet the deadline, prompting First Nations, environmental organizations and corporations to call on minister McKenna to intervene at the federal level.

The September roll-out of the ‘Caribou Facts’ campaign was timed to influence the minister, Hebblewhite said.

ICYMI: Will Alberta’s Last-Ditch Effort to Save the Caribou Be Enough?

“In the U.S. the Endangered Species Act includes an analysis of the socio-economic impacts of the Act. So that’s where industry meddling occurs, that’s where you’ll see industry lobbying,” he said.

But when Canada drafted the Species At Risk Act, it was designed to focus on biology, rather than economics.

“At no time during these phases are socio-economic influences considered. It’s meant to be a scientific analysis.”

Once recovery plans are developed, provinces are able to move into the action planning phase, which is where Canada is now with incoming range plans, Hebblewhite said.

Minister McKenna will take until April 2018 to evaluate provincial and territorial plans.

“The minister now has the right to consider socio-economic concerns,” Hebblewhite said. “So that is why we’re seeing this industry campaign now. The minister is the main audience here.”

*This article was updated to specifiy 96 per cent of the Little Smoky caribou range is within 500 metres of human disturbance, rather than all caribou habitat.

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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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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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The development group that has spent more than 24 years trying to build a controversial ski resort in the East Kootenay’s Purcell Mountains is not giving up without a fight.

Glacier Resorts Ltd. plans to ask for a judicial review of Environment Minister Mary Polak’s decision to pull the project’s Environmental Assessment Certificate. The group is also looking at building a smaller resort that would not have to go through a new environmental assessment process.

A July 20 letter to the chief administrative officer of Jumbo Glacier Mountain Resort Municipality from Oberto Oberti of Pheidias Project Management Corp., the group that manages the project, says Glacier’s lawyers will submit a request for a judicial review of the minister’s “surprising decision” as soon as the case is prepared.

“Glacier cannot allow that the project be dismissed after having substantially done everything that it was asked to do and was permitted to do up to October 12, 2014, and it believes that a judicial review will show clearly that the Minister did not make a correct decision in declaring that the project was not substantially started,” says the letter.

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In the meantime, the company will work on minor amendments to the Master Plan and the Master Development Agreement to reduce the size of the project to below the threshold of Environmental Assessment regulations, Oberti wrote.

The smaller project could move forward under the provincial All Seasons Resort Policy, he suggested.

“The ASRP does not have the deadline created in the revised Environmental Assessment Act, a deadline that has become the latest issue in this project and that is not related to the sustainability or value of the project,” he wrote.

Plans for the billion-dollar, 6,300-bed Jumbo Glacier Resort ground to a halt last month when Polak withdrew the Environmental Assessment Certificate after concluding that the project had not substantially started in the 10 years since the certificate was granted.

Despite strong opposition from local politicians, environmental groups and residents, the province granted the EA certificate in 2004 and it was renewed in 2009, but construction progress was almost non-existent before the October deadline, which marked the expiry of the certificate.

At that time only two buildings were under construction and, in April, the company was handed a provincial stop work order as the footings were in avalanche paths.

Read DeSmog Canada's Jumbo Series:

Jumbo Glacier Mountain Resort Municipality, which has no residents and no buildings, was created by the province for the sole purpose of facilitating development of the resort and the letter from Oberti says he believes Mayor Greg Deck and the two-member council will “easily recognize that the work done in the five available weeks was more than substantial.”

The company has blamed protests, limited access to the area because of avalanche debris and bridge problems and bad weather for not making more progress.

However, Oberti says in the letter that, if the project had been allowed to continue, ski runs that are currently available only to heli-skiers, would be open to skiers in the near future.

“This would have created the certainty that this project so badly needs,” he said.

Robyn Duncan, executive director of Wildsight, one of the groups adamantly opposed to the resort, said the decision to ask for a judicial review is surprising as the minister’s decision was solid.

However, no request has yet been filed and, in addition, there are two court cases still under consideration, she noted.

A B.C. Supreme Court judge has reserved her decision on an application by the West Kootenay EcoSociety to dissolve the municipality and the B.C. Court of Appeal is considering an appeal by the Ktunaxa First Nation of a judicial review that determined the B.C. government acted appropriately when it approved a Master Development Plan for Jumbo in 2012.

Duncan said no plans for a smaller development have yet been seen and opponents are researching what process could be used that would allow Glacier Resorts to forge ahead.

“There are lots of unanswered questions on how they would go about amending the documents,” she said.

“We are doing a lot of research into the mechanisms and hoops they would have to jump through.”

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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 provincial stop work order on the only two buildings under construction on the proposed Jumbo Glacier Resort site comes as no surprise to those familiar with the Jumbo Valley, which is marked by the bare swaths of avalanche paths sweeping down mountainsides and across the valley.

“I think it was a foregone conclusion,” said Rod Gibbons, senior guide with RK Heli-ski, a company that has operated in the area for more than 40 years.

“We were the ones that turned in the report to government to let them know (Glacier Resorts Ltd.) had just put the footings in the runoff zone for an avalanche path,” he said.

Renowned mountaineer and photographer Pat Morrow, who, as a director of the Jumbo Creek Conservation Society, has been at the forefront of an ongoing battle to stop development of the glacial wilderness resort, said the proponent appears to be arguing that avalanches don’t go through trees or create new paths.

“This was not a surprise at all,” he said.

In a letter sent last week to Oberto Oberti of Glacier Resorts, Autumn Cousins, compliance manager for the Environmental Assessment Office, said the company must stop construction on the day lodge and service building, at least until new avalanche safety conditions are met.

A report by Dynamic Avalanche Consulting found that the service building is constructed in a high-risk red zone, where construction of new buildings is normally not permitted, and the day lodge is in the moderate-risk blue zone, where structures must be reinforced, explosive avalanche controls used and a detailed evacuation plan in place.

The controversial proposal for a billion-dollar, 6,300-bed resort, on Crown land 55-kilometres west of Invermere, has been in the works for 24 years. It was granted an Environmental Assessment Certificate in 2004, which was renewed in 2009, but, for the certificate to become permanent, the company must prove that construction substantially started before last fall’s deadline.

For the last decade, progress on the resort has been almost non-existent, but, shortly before the deadline, foundations were poured for the two buildings and preliminary work started on the ski lift site.

Foundation for the Jumbo Glacier Resort day lodge. Photo: Jumbo Glacier Resort via Facebook

However, locating the buildings in avalanche zones means the company is not in compliance with one of the Environmental Assessment Certificate conditions.

If the province gives the go-ahead, the certificate will have to be amended, even if mitigation measures are in place, Cousins said in the letter.

“It is the (Environmental Assessment Office’s) view that it is not possible for Glacier Resorts Ltd. to achieve compliance with condition 36 with the two structures as currently located,” she wrote.

The compliance investigation is separate from the process to determine whether the project has substantially started, Cousins said in the letter.

Morrow believes the avalanche report should convince Environment Minister Mary Polak to put a final halt to the resort plans.

“If she tries to cancel the independent avalanche consulting firm’s findings, it would be going too far,” he said.

If the foundations of the two buildings are removed from the equation, a new bridge would be the only new construction — and that was paid for by the Jumbo Glacier Mountain Resort Municipality, meaning it was funded by provincial taxpayers, Gibbons said.

Bridge construction. Photo: Jumbo Glacier Resort via Facebook

“I am now waiting with bated breath to hear what government is going to do about that substantial start,” he said.

John Bergenske, conservation director for Wildsight, an environmental group that opposes the project, said Jumbo is a test for the provincial government and its willingness to adhere to its own regulations.

“I certainly can’t imagine what rationale there would be to say that the project has substantially started,” he said.

The proponents have failed to meet the conditions of the Environmental Assessment Certificate and have not proved that they have any major investors, Bergenske said.

“This would be handing a permit to people who have absolutely failed to come through on anything they have promised…This business has been given every conceivable break — is the province going to change the rules every time someone wants to do something different?” he asked.

“If, in fact, there are any rules, there’s only one decision that the minister can make.”

The original resort plans show the day lodge was to be built in another part of the valley outside avalanche zones.

“They changed their minds for some reason at the last minute,” Morrow said.

“It’s mystifying — who knows what they were thinking.”

Gibbons is also nonplussed by the decision to move the lodge.

“I suspect it was for economic purposes. Maybe it was quicker and easier to put it there,” he said.

Lift towers are at even more risk from avalanches than the two buildings, said Morrow, who is hoping the province is looking at the whole picture.

“It’s almost impossible to put them any place that is completely safe,” he said.

“Even the wind from an avalanche can knock a gondola right off the cable. The winds can cut trees in half.”

DeSmog Canada was unable to contact Glacier Resorts Monday, but in a written response to the Environmental Assessment Office, the company said mitigation efforts for the day lodge will include structural reinforcement, comprehensive avalanche control and an evacuation plan for employees and the general public.

“The service building will be converted to a structurally reinforced storage building that will not be accessed during winter,” said the company response.

Image Credit: Jumbo Glacier Resort via Facebook

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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.

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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

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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.

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*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.

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Major natural gas projects and ski resort developments now have the option of being built in B.C. without environmental assessment after the Liberal government quietly deposited two orders in council Monday. (Update April 17, 2014: The B.C. government has rescinded this decision. Read our new post here)

The orders — passed without public consultation — include changes to the Reviewable Projects Regulation under the provincial Environmental Assessment Act, which eliminate mandatory environmental review of new and/or modified natural gas and ski facilities. As a result, proposed projects like the Jumbo Glacier Resort or new natural gas processing facilities may skirt the approval process without standard environment review, which involves public consultation.

“These regulatory changes only heighten the crisis of public confidence in B.C.’s environmental assessment process,” said Jessica Clogg, executive director and senior counsel with West Coast Environmental Law Association (WCEL) in a press release.

“Environmental assessments are supposed to allow the public and regulators to better understand and avoid potential risks. Removing the requirement for an environmental review is not in the public interest.”

Changes to affect currently proposed projects

The Jumbo Glacier Resort, a $900-million mega resort proposed for 6,000 hectares of B.C.’s Purcell Mountains, has been stuck in planning-stage limbo for two solid decades. Despite significant provincial support, the development still faces a number of hurdles, the most notable of which is an unresolved legal challenge brought against the resort by the Ktunaxa Nation. If construction doesn’t begin by October 2014, the development faces losing its environmental approval certificate.

Changes made to the Reviewable Projects Regulation may ease the recertifying process without requiring public consultation or environmental oversight.

“It appears to be a stunning attempt to keep the ill-fated Jumbo Resort proposal afloat, funded by the misappropriation of British Columbian's taxpayer dollars,” said Wildsight’s Robyn Duncan.

During a recent public consultation more than 1,300 letters of opposition were submitted from across B.C.

“Assessing the environmental and social impacts of any such project should be a basic requirement,” Duncan said. “Exempting projects like Jumbo from the environmental assessment process closes the door on informed decisions in regard to environmental and social impacts.”

Potential loss of oversight for B.C. natural gas projects

The lack of oversight will also influence B.C.’s rapidly expanding natural gas sector. New natural gas processing plants may now be approved without a provincial environmental assessment.

Anna Johnston, staff counsel at WCEL, says that the changes could have severe consequences for local communities. “Now for natural gas production facilities there is no public review. Once there is no longer an environmental assessment, there is no mandatory public consultation.”

“It’s really concerning with these natural gas facilities, because there are so many of them. The province wants to grow this industry and there is a lot of related infrastructure, roads, and pipelines,” she told DeSmog Canada.

“They have a huge impact on habitat and water.”

Under existing law companies will still have to notify affected landowners and First Nations but not the general public.

Proposed liquefied natural gas (LNG) facilities for the central coast will still be subject to environmental assessment, says Johnston, because they store fuel and so fall under a different review category.

According to WCEL, the B.C. Environmental Assessment Office claims the changes “are designed to reduce duplication with regulation by the Oil and Gas Commission and the Ministry of Forests, Lands and Natural Resources Operations.”

However, “these changes go far beyond avoiding any possible duplication,” Johnston wrote in the WCEL press release.

“Environmental assessments are an essential and distinct part of any development process. With these changes, the province has eliminated the kind of fact-finding process and analysis that is required for responsible decision-making.”

“Public participation is necessary for social buy-in,” she said. “Governments can only keep restricting citizens’ rights to have their say in the projects that affect them for so long.”

The changes are especially significant after the weakening of the federal Canadian Environmental Assessment Act, which places the responsibility and burden of environmental assessments upon the provinces.

Image Credit: CCPA Fracking Up our Water, Hydro Power and Climate: BC's Reckless Pursuit of Shale Gas 

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