By Chris Conway

The Government of British Columbia has issued an order of non-compliance and ordered the cessation of all construction on the Jumbo day lodge and service building.

The order was issued on April 24 by Autumn Cousins, Manager of Compliance at the Environmental Assessment Office (EAO).

Glacier Resorts Ltd. (GRL) holds a 10-year old Environmental Assessment Certificate issued by the EAO for the purpose of developing a ski resort in the upper Jumbo Valley, 55 km west of Invermere.

The EAO order stated: “the certificate holder has caused structures proposed for commercial use to be located in whole or in part in areas that are avalanche hazard areas for the purpose of the certificate and that the project has thus not been constructed in accordance with the certificate.”

It went on to state: “I order that the certificate holder cease construction of any structures in the service building location or the day lodge location and not resume construction of any structures at either the service building location or the day lodge location until either this order has been rescinded or the construction is in accordance with the certificate.”

In a letter accompanying the order, Cousins acknowledged a GRL commitment to implement risk mitigation recommendations in an effort to allow use of the day lodge and service building in the current locations. The proposed avalanche risk mitigation for the day lodge include structural reinforcement as necessary, and a comprehensive avalanche control and safety plan.

Cousins also acknowledged GRL’s commitment to provide a workplace and public avalanche evacuation plan at the day lodge site.

The avalanche path, known as the Pink Panther, is capable of producing size 4 slides, which can destroy buildings and large areas of forest.

Cousins noted that GRL’s proposed mitigations would still be non-compliant unless GRL first seeks, and successfully receives, an amendment to the EA Certificate.

The Environmental Assessment Act allows the holder of an environmental certificate to apply to amend the certificate. The Act empowers the Minister of Environment to add to, vary or delete conditions in the certificate.

The Act states that failure to comply with an EA Certificate is an offence punishable by a fine and/or imprisonment.  The Act appears to be silent on whether the government has retroactive power to amend a certificate where the offence of non-compliance has already occurred.

The Environmental Assessment Office provides some guidance on certificate amendment process.

An EAO user guide states that an amendment may need to occur, for example, if the project is sold to a new owner or if the project design requires an unanticipated change.

When the EAO receives an amendment application, the EAO will establish a process for considering the application. According to the user guide, the process will involve consulting with working group members and First Nations. It may also require public consultation.

The application fee for an amendment to the certificate varies between $10,000 and $50,000 depending upon the complexity of the application.

GRL senior vice-president Grant Costello was asked if GRL expected to apply for an amendment but did not respond to the request prior to publication of this article.

In a press release issued April 25, Wildsight Conservation Director John Bergenske reacted positively to the EAO announcement.

“I think the government had no choice but to recognize Jumbo Glacier Resorts’ non-compliance to Environmental Assessment Certificate conditions. The developer’s ill conceived last minute attempt to create a footprint in the Jumbo Valley has failed,” said Bergenske.

“I look forward to the minister’s decision on whether the project is ‘substantially started,’” he said. “There should be no question in the minds of reasonable people that the project has not been started. The little activity that has taken place will require remediation measures.”

“The concerns of the community and the Ktunaxa Nation have yet to be put to rest, but this determination brings us closer to keeping the Jumbo Valley wild,” concluded Bergenske.

In closing her April 24 letter to GRL, Cousins reminded the company that the compliance investigation is distinct from the process to determine whether the project was substantially started by the certificate’s October 12, 2014 deadline.

“The impact of this compliance determination, if any, on the substantially started question will be addressed in that process,” wrote Cousins.

A decision in that regard remains pending from Minister of Environment Mary Polak.

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