By Chris Conway

The Jumbo Glacier Mountain Resort Municipality (JGMRM) will continue with the current Official Community Plan (OCP) adoption process until notified to cease by the provincial government.

On Thursday (June 18) Minister of Environment Mary Polak issued a determination that the Environmental Assessment (EA) Certificate for the only development in the municipality had expired. Polak ruled that project proponent Glacier Resorts Ltd. (GRL) had failed to achieve a substantial start on the project.  As a consequence of the decision, GRL must cease all work on the development.

Over recent months JGMRM has been engaged in a process to adopt an OCP. On Tuesday (June 16) the council held a public hearing, which was attended by approximately 50 people, some of whom made verbal submissions. Over one hundred written submissions were also received. The next step in the OCP process will be for municipal staff to prepare a written report for council’s consideration and potentially a third reading of the bylaw and subsequent adoption.

By order in the letters patent, which formed the municipality, the Jumbo OCP must conform to the pre-existing master development plan and agreement between the province and GRL. However, that process and the entire purpose of the municipality has been put in question by Polak’s landmark decision, which has effectively brought the entire project to a standstill.

“We found out about the decision today, just like everyone else,” stated JGMRM Mayor Greg Deck via email. “The municipality does not have a role to play in the EA process. We obviously have a very big stake in the outcome, but I’m not comfortable speaking for either the province or the proponent on the subject of the certificate.

“We haven’t heard anything from the province, and I wouldn’t expect to hear anything until the province and the proponent have met and decided what the next steps will be,” he continued. “The municipality exists to provide certainty to the land use question and to translate the agreements between the province and the proponent into local government bylaws. If those agreements are in question, then so is the purpose of the municipality. But we have no more information on that at this point than anyone else.

“I expect that we will continue with the business underway until we receive clear direction from the province that our work is no longer required,” concluded Deck.

According to the ministers written reasons, the determination of non-compliance was based largely on an expert report prepared by Dynamic Avalanche Consulting, provided by GRL in response to EAO’s request of December 11, 2014. That report concluded that a service building was mostly located in a high risk avalanche zone and the day lodge was mostly located in a medium risk avalanche zone. GRL had committed to mitigating the avalanche risk, which is a factor the minister considered and rejected as being not legally binding and GRL’s ability to implement them is dependent on obtaining an amendment to the certificate and possibly other authorizations.

GRL argued that the appropriate benchmark for determination was the components of the project required to begin operations of the resort as opposed to the entire project or even the entirety of phase 1. Polak was troubled by the fact that such a benchmark is not grounded in the project as described during the environmental assessment, the master planning process or the tenuring of the project. Moreover, GRL did not point to a detailed document or plan that specifically set out its plan to achieve the start of operations.

GRL also raised in its submissions a number of mitigating factors that they felt should be considered in the minister’s evaluation. The minister stated that while many of those factors would be relevant in determining whether an extension should be granted to the EAC, she did not think she should consider them in the context of a final substantially started threshold.

“While it is clear that some construction has been started, I am not convinced that the physical activity undertaken on the various components meets the threshold of a substantially started project,” stated minister Polak in the determination. “I have also turned my mind to the question of whether the project would be substantially started if the service building and day lodge were fully compliant with Condition 36. I have concluded that even if these partially constructed structures were weighted fully, the work undertaken would still not be sufficient to meet the substantially started threshold.”

Condition 36 required that no building be constructed in an avalanche path.

Minister Polak spoke with reporters on Thursday and explained that her decision was made under statute and that the legal test for her determination is defined as the reasonable opinion of the minister with respect to a substantial start. She explained that the government must now consider what the next steps will be.

“You would ordinarily expect that with any government decision there is a significant amount of discussion between ministries that have an interest in a particular matter or may have a role to play,” said Polak. “Because of the nature of this decision that has not taken place and so they have only found out the determination on Jumbo today. So now those ministries; Forest, Lands and Natural Resource Operations, and Community, Sport and Cultural Development will have to turn their minds to analyzing what is their next step with respect to their responsibilities.”

Minister Polak was asked if there would be any remediation plans for the Jumbo valley. “That will be a next step in the process,” said Polak. “We will work with the proponent to determine what, if anything, needs to take place on the site. Again, it’s the nature of the decision, until my determination is announced none of that work was possible to take place.”

The minister addressed a question about whether the determination means the project is dead.

“The (EA) certificate expired as of Oct 12, 2014, if they are not substantially started,” she said. “So they don’t possess a certificate. Whether or not the project is dead is a matter of whether or not the proponents decide to start over again in the process. That’s an option open to them, that’s not a decision for me to make at this point.”

The minister was asked if the government intends to revisit a previous proposal to exempt ski resorts and gas plants from environmental assessments.

“We have not been continuing to pursue that at this time,” stated Polak. “We certainly heard substantial concerns from First Nations and others, so it’s not something we are pursuing right now.” With that response, the press conference concluded.

GRL senior vice-president Grant Costello was contacted by email for comment on the decision but did not respond by late Thursday evening.

Lead image: JGMRM Mayor Greg Deck, centre, with fellow appointed council members Nancy Hugunin and Stephen Ostrander during the June 16 OCP hearing at the Village of Radium Hot Springs council chambers. Photo by Chris Conway

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