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British Columbia B.C. Court of Appeal deals blow to Jumbo Glacier Resort, rules environmental certificate invalid

The Jumbo Valley, the planned site of the ski resort.

Nathan VanderKlippe/The Globe and Mail

A controversial ski resort proposed in southeastern British Columbia is facing a new challenge after the province’s highest court ruled its environmental assessment certificate is invalid.

The B.C. Court of Appeal says the Environment Minister reasonably concluded that the provincial certificate expired after 10 years because work on the Jumbo Glacier Resort had not “substantially started,” reversing a decision by the B.C. Supreme Court. The certificate issued to Glacier in 2004 required that substantial work begin within five years, later extended to 10 years. The court says construction the closure of an access road and obstacles in obtaining municipal rezoning and a master development agreement with the province contributed to delays.

Glacier filed for a judicial review after the minister determined in 2015 that not enough work had begun for operations to continue under the same certificate. The minister’s decision was overturned by the B.C. Supreme Court but the Appeal Court upheld a challenge of that decision.

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In the court’s decision released Tuesday, Justice Harvey Groberman writes that it was OK for the minister to look primarily at progress on the ground in determining how much work had been begun.

“In my view, the judge erred in finding the minister’s decision unreasonable. I would allow the appeal and dismiss the judicial review petition,” he says.

In a dissenting opinion, Justice John Hunter says he would have dismissed the appeal on the basis of the minister’s “express refusal” to consider all relevant circumstances affecting the extent to which Glacier could advance construction on the project.

He agreed with the lower court judge, who found the minister’s 2015 interpretation was unreasonable because it failed to consider the difficulties the company faced in starting construction.

By the decade deadline, the court says only limited construction had begun to build a day-skiing operation rather than a destination ski resort.

Glacier could not be reached for comment. No one from the Environment Ministry was immediately available for comment.

Ecojustice said the Jumbo Valley is critical grizzly bear habitat and sacred to the Ktunaxa First Nation. The environmental law group represented Wildsight and Jumbo Creek Conservation Society for years in their legal battle against Glacier Resorts.

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“Without a certificate, Glacier cannot undertake any construction or operation of the project, and cannot obtain provincial approvals needed for the project. Until Glacier Resorts successfully completes a new environmental assessment process, this resort project is dead,” Ecojustice said in a statement.

Lawyer Olivia French said projects with potentially significant environmental impacts must be assessed using current information, not data that is more than a decade out of date.

“Respecting the expiration dates of environmental assessments is essential, because scientific understanding and best practices can change dramatically in a decade,” French said in the statement.

The ruling is the latest in several court challenges related to the project. In November 2017, the Supreme Court of Canada ruled in the company’s favour when it said the project does not violate the Ktunaxa First Nation’s constitutional right to freedom of religion.

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